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Judgment
Sl.No.,Name of service,Refund claimed,"Refund claimed
%
1.,Rent-a-cab Operator service,"Rs.28,26,331/-",84.59
2.,Security Agency Services,"Rs.2,13,698/-",6.40
3.,Works Contract Service,"Rs.1,38,659/-",4.15
4.,Accommodation services,"Rs.98,069/-",2.94
5.,Outdoor caterer services,"Rs.25,029/-",0.75
6.,Information Technology Software services,"Rs.15,249/-",0.46
7.,Commercial Training,"Rs.8,448/-",0.25
8.,Banking & Other Financial Services,"Rs.6,752/-",0.20
9.,Legal Consultancy Service,"Rs.6,633/-",0.20
10.,Telecommunication services,"Rs.2,324/-",0.06
,Grand total,"Rs.33,41,191/-",100
Learned counsel for the appellant submitted that the impugned order is not sustainable in law because the same has been passed without properly,,,
appreciating the facts and documents on record and refund claims have been rejected by taking into account irrelevant consideration and materials.,,,
He further submitted that the impugned order has been passed based on assumptions, presumptions, conjectures and surmises and without considering",,,
and verifying the documents produced by the appellant before him. He further submitted that the SEZ provision being beneficial in nature and would,,,
prevail over anything which is inconsistent contained in any other legislation as provided under Section 51 of SEZ Act. He further submitted that the,,,
Commissioner(Appeals) has wrongly assumed that the specified services have been used for authorized operation as well as for operations of DTA,,,
units whereas the fact of the matter is that refund application has been filed during the relevant period only with respect of SEZ of the firm. He,,,
further submitted that the fact that all the invoices for specified services are specifically issued and addressed to SEZ unit of the appellant makes it,,,
clear that the services are used 6 for authorized operation of SEZ and not used by DTA unit but the appellate authority without properly verifying all,,,
the documents on record has wrongly come to the conclusion that specified services have been used for DTA unit as well SEZ. Learned counsel has,,,
also produced sample copies of various invoices of input services which is annexed as Annexure of appeal paper book. Learned counsel further,,,
submitted that appellant has not violated conditions at para 3(III)(d). He referred to para 3 of SEZ Notification and submitted that if the refund,,,
pertains to Sl.No.(i), then the service tax paid on specified services which are common to authorized operation in SEZ units and operations in DTA",,,
units, only then the service tax paid shall be distributed amongst the SEZ unit and DTA unit in the manner prescribed in Rule 7 of the CENVAT Credit",,,
Rules, 2004. He further submitted that the appellant’s case is covered by Sl.No.(ii) and not by Sl.No.(i) and therefore they are not required to",,,
fulfill conditions applicable for Sl.No.(i) in the Notification. He further submitted that the appellate authority has failed to acknowledge the fact that the,,,
refund has been claimed only proportionately to the export turnover of SEZ unit and therefore provisions of Rule 7 of CENVAT Credit Rules is not,,,
applicable because the appellant has not used the specified services for the operations in DTA units. Learned counsel further submitted that vide para,,,
10 of the impugned order, the appellate authority has alleged that bank statement furnished by the appellant as a proof of payment to the input service",,,
provider does not refer to any specific invoice number and date and further the amount claimed do not tally with the bank statement submitted by the,,,
appellant and there is no correlation between the documents. To counter this finding, the learned counsel submitted that appellant submitted bank",,,
statements while filing the refund application with the learned original authority along with correlation of each payment in the bank statement with the,,,
vendor invoices against which refund has been claimed but the same were not verified and considered by the Commissioner(Appeals). Learned,,,
counsel has submitted copy of the statement capturing invoice-wise details of input services on which refund is claimed by the appellant vide,,,
Annexure 7 and extract of the bank statement capturing bank reference number and transaction-wise narrative along with the invoice value vide,,,
Annexure-8 along with appeal paper book. Learned counsel further submitted that the appellant has also not violated conditions at para 3(III)(d) which,,,
provided that the amount indicated in the invoice, on the basis of which refund is claimed including the service tax has been paid to the service",,,
provider. He further submitted that the appellants had made the payment to the vendors after complying with the statutory obligation under the Income,,,
Tax Act of deducting tax at source and correlated with the bank statements but the statements were also disregarded by the Commissioner(Appeals).,,,
Learned counsel also submitted that the appellant has also not violated condition at para 5 of the SEZ Notification which means that the appellant has,,,
proved that it has not claimed cenvat credit on specified services whereas they claimed refund. He further submitted that the appellant submitted,,,
invoice-wise details of procurement clearly distinguishing the invoices against which credit is availed in ST3 returns and refund is availed under the,,,
present refund claim application. Learned counsel also submitted that the appellant is entitled to interest under Section 11BB of the Central Excise Act,,,
read with Section 83 of the Finance Act, 1994. Learned counsel also submitted that in the appellant’s own case, the original authority has granted",,,
the refund in similar situations for the period April to June 2015 and the Order-in-Original dt. 29.07.2016 has also been produced on record.,,,
On the other hand, the learned AR reiterated the findings in the impugned order.",,,
After considering the submissions of both sides and perusal of the material on record, I find that the impugned order has rejected the refund claims",,,
on the grounds that the appellant has violated the condition at para 3(III)(a), 3(III)(d) and Rule 5 of SEZ Notification No.12/2013-ST dt. 01/07/2013.",,,
Further, I find that the appellant has SEZ units as well as DTA units and had centralized Service Tax registration at Bangalore. The present refund",,,
application pertains to only SEZ units and is not connected with DTA units whereas the Commissioner(Appeals) in the impugned order has wrongly,,,
come to the finding that the appellant has filed refund claim application for input services which have also been used in DTA units. Further I find that,,,
the impugned services involved in the present case for which refund has been denied, fall in the approved list of input services issued by the",,,
Development Commissioner and the appellant has produced on record the instruction issued by the Government of India, Ministry of Commerce and",,,
Industries, SEZ unit, where I find that these services have been specifically covered as input services. For each violation alleged by the Revenue,",,,
appellant have produced documentary proof in the form of invoices, bank statements and other records but the same has not been considered by the",,,
authorities below. Appellant has produced all those documentary proof along with the appeal paper book and some of the documents have also been,,,
produced along with written submissions at the time of hearing of these appeals. Since those documents and statements have not been considered in,,,
the impugned order by the learned Commissioner(Appeals) and the Commissioner(Appeals) has come to the finding which is not based on verification,,,
of the documents. In such circumstances, I am of the considered view that the matter needs to be remanded to the original authority with a direction",,,
to consider the statements, invoices and documents produced by the appellant in support of his claim and thereafter decide the refund application by",,,
passing a reasoned order. The original authority will also consider that in the appellant’s own case for earlier period for the same services, the",,,
refund was granted vide Order-in-Original dt. 29/07/2016. In view of my above discussion, the impugned order is set aside. The matter is remanded to",,,
the original authority to decide the refund claim application afresh after following the principles of natural justice. All the three appeals are disposed of,,,
by way of remand.,,,
(Order was pronounced in Open Court on 30/06/2021),,,