Custom, Excise & Service Tax Tribunal
Orix Auto Infrastructure Services Ltd vs Mumbai I on 12 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
APPEAL NO: ST/388/2011
[Arising out of Order-in-Appeal No: RBT/101/2011 dated 16/03/2011 passed by the Commissioner of Central Excise (Appeals IV), Mumbai Zone I.]
For approval and signature:
Honble Shri M V Ravindran, Member (Judicial)
Honble Shri C J Mathew, Member (Technical)
1.
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
:
No
2.
Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
:
No
3.
Whether Their Lordships wish to see the fair copy of the Order?
:
Seen
4.
Whether Order is to be circulated to the Departmental authorities?
:
Yes
ORIX Auto Infrastructure Services Ltd.
Appellant
Vs
Commissioner of Service Tax
Mumbai I
Respondent
Appearance:
Shri Harish Bindumadhavan, Advocate for the appellant Shri B. Kumar Iyer, Superintendent (AR) for the respondent CORAM:
Honble Shri M V Ravindran, Member (Judicial) Honble Shri C J Mathew, Member (Technical) Date of hearing: 12/08/2015 Date of decision: 12/08/2015 ORDER NO: ____________________________ Per: M.V. Ravindran:
This appeal is directed against Order-in-Appeal No: RBT/101/2011 dated 16/03/2011 passed by the Commissioner of Central Excise (Appeals IV), Mumbai Zone I.
2. Heard both the sides and perused the records.
3. On perusal of the records it transpires that the issue involved in this case is regarding the confirmation of demand of service tax under the category of Rent-a-Cab Service. It is the case of the appellant that the said service tax liability does not arise as during the period October, 2005 to March, 2006 they had rendered the services of rent-a-cab service to a unit located in SEZ and by mistake paid the service tax and they are entitled for benefit of Notification 4/2004-ST dated 31/03/2004. We find from the records that both the lower authorities have confirmed the demands only on the ground that the benefit of Notification 4/2004 is available only in those cases where services are consumed within the special economic zone and units situated therein while it is the case of the appellant that the services are rendered for transportation of the employees to and from their residences located outside SEZ.
4. We find that the appellant has made out a case in their favour inasmuch as this Tribunal in the case of Norasia Container Lines vs. Commissioner of Central Excise, New Delhi 2011 (23) STR 295 on similar issue held as under:
4.?We have considered the submissions from both the sides. The notification No. 4/2004 uses expression for consumption of services within such Special Economic Zone, but at the same time also uses the expression taxable services provided to a unit of the SEZ. Both the expressions are required to be read harmoniously. In any case, the subsequently enacted SEZ Act further provides in Section 26 as under :
Section 26.
Exemptions, drawbacks and concessions to every Developer and entrepreneur. - (1) Subject to the provisions of sub-section (2), every Developer and the entrepreneur shall be entitled to the following exemptions, drawbacks and concessions, namely :-
(a) xxxx
(b) xxxx
(c) xxxx
(d) xxxx
(e) Exemption from service tax under Chapter V of the Finance Act, 1994 (32 of 1994) on taxable services provided to a Developer or Unit to carry on the authorised operations in a Special Economic Zone;
(f) xxxx
(g) xxxx
5.?It is clear from the above provision that there is no restriction regarding the consumption of the services and the exemption is extended to the services rendered to a unit in the SEZ for the purpose of authorised operation in the SEZ.
6.?Rule 31 of the Special Economic Zone Rules, 2006 provides as under :
Rule 31 The exemption from payment of service tax on taxable services under section 65 of the Finance Act, 1994 (32 of 1994) rendered to a Developer or a Unit (including a Unit under construction) by any service provider shall be available for the authorised operations in a Special Economic Zone.
7.?This Rule also states that exemption from service tax is available to services rendered to a unit in the SEZ for the authorised operations. There is no dispute that the containers provided to the units in the SEZ have been used by such units for the authorised operations, namely, for bringing inputs for manufacture and carrying the finished goods out of SEZ for export purposes. Therefore, we are of the view that the impugned services relating to supply of containers in the SEZ are exempt from payment of Service tax. We, accordingly, set aside the impugned order and allow the appeals. The Stay applications also stand disposed of.
5. It is also to be noticed that the Tribunal in the case of Intas Pharma Ltd. vs. Commissioner of Service Tax, Ahmedabad 2013 (32) STR 543 has held as under:
11.?On true and fair construction of Notifications 9/2009 and 15/2009 issued under Section 93(1) of the Act, considered in the light of the overarching provisions of Sections 7 and 26(e) of the 2005 Act, the conclusion appears compelling that neither Notification 9/2009 nor 15/2009 disentitle immunity to Service Tax enjoined by the provisions of the 2005 Act. It therefore appears that Notification Nos. 9/2009 and 15/2009 merely contour the process by which the benefit of exemption/immunity to tax is operationalised. Notification Nos. 9/2009 and 15/2009 have provided a facilitative regime whereby a developer or units of SEZ, as recipients of taxable service are enabled the facility of claiming refund of Service Tax, remitted by taxable service providers in relation to the taxable services provided to a unit in a SEZ. On this harmonious construction, the immunity to Service Tax provided under Section 7 or 26 of the 2005 Act cannot be so interpreted as to be eclipsed the procedural prescriptions of Notification No. 9/2009 or 15/2009. These Notifications are calibrated to enable recipients of taxable services (exempt from liability to tax under the provisions of the 2005 Act), to claim refund of the Service Tax, wherever assessed and collected by Revenue or remitted otherwise by the taxable service provider, inadvertently. Considered in the light of this analysis, the substituted provisions, of clause/sub-paragraph c of Notification No. 15/2009 cannot be inferred to have imposed any disability on the recipient of services consumed wholly within the SEZ, from seeking refund of Service Tax remitted on such transactions, by the providers of such services.
12.?Therefore, the rejection of the appellants claim by the adjudicating authority and affirmation of such rejection by the Commissioner (Appeals), to the extent Rs. 56,650/-, in relation to Architect, Interior Decorators and Consulting Engineer services provided by M/s. Venkataramanan Associates, is unsustainable and is so declared. The order impugned herein namely the Order-in-Appeal dated 29-10-2012 is set aside. Appellant shall be entitled to refund of Rs. 56,650/-.
6. In the case in hand, there is no dispute that the appellant herein rendered service of tour operator for transportation of employees of a unit situated in SEZ. If that be so the ratio of the judgment of the Tribunal, as reproduced herein above, will apply. Accordingly, the impugned orders are set aside and the appeal is allowed.
(Pronounced in Court) (C J Mathew) Member (Technical) (M V Ravindran) Member (Judicial) */as 6