2018 (10) TMI 1375 – CESTAT MUMBAI – TMI – Refund of service tax paid subject to the condition that no credit has been availed – benefit of Notification No. 17/2011-ST dated 1.3.2011 as also a subsequent identical Notification No.40/2012-ST dated 20.6.2012 – Revenue entertained a view that they have availed the cenvat credit of service tax so paid by them and as such, the condition of the notification stands violated by them – what exactly is the meaning of the expression “taken” appearing in sub-clause (g) of Explanation (2) appended to the notification in question?
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Held that:- The notification debars taking of cenvat credit of service tax paid on the specified services used for the operations in SEZ unit.
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A mere maintenance of an account showing the total quantum of service tax paid by the assessee cannot be held to be availment of cenvat credit. The mere entries in such records which are not even prescribed statutory records, cannot lead to the inevitable conclusion tha
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tions on SEZ, is that no cenvat credit would be availed by the assessee. Such availment cannot be held to be there unless such service tax accumulated in the accounts of the assessee stands utilized by them.
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Appeal allowed – decided in favor of appellant. – ST/87531/2018 – A/87665/2018 – Dated:- 18-10-2018 – Mrs. Archana Wadhwa, Member (Judicial) For the Appellant : Shri Keval Shah, C.A. For the Respondent : Shri Sudhir B. Mane, Assistant Commissioner (AR) ORDER After hearing both the sides duly represented by Shri Keval Shah, Chartered Accountant, for the appellant and Shri Sudhir B. Mane, Assistant Commissioner (AR), I find that the appellant is a unit located in SEZ area and was availing the benefit of Notification No. 17/2011-ST dated 1.3.2011 as also a subsequent identical Notification No.40/2012-ST dated 20.6.2012. In terms of the said notification, the input services, utilized by the SEZ developer, for the authorized operations, are exempt from payment of service tax. The
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were maintaining the record showing the quantum of service tax paid by them in respect of various services so received. 3. Subsequently, they filed a refund claim for ₹ 8.60 lakhs approximately for claim of the said service tax so paid by them. However, inasmuch as the assessee had reflected the said service tax in their ST-3 returns, Revenue entertained a view that they have availed the cenvat credit of service tax so paid by them and as such, the condition of the notification stands violated by them. Accordingly, proceedings were initiated for denial of the refund claim, resulting in passing of the present impugned orders by the authorities below. 4. The appellant during the course of adjudication took a categorical stand that no cenvat credit stands taken by them or stands utilized by them. They have merely maintained a record of the service tax so paid by them in respect of various input services and the total amount of such service tax was reflected by them in their ST-3 re
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know about the total service tax quantum earned by the assessee will also not amount to the fact that as if the assessee has taken and utilized the credit. Not only that the appellant in their subsequent ST-3 returns has again shown the opening balance of such account maintained by them as zero and has reflected the total service tax earned by them in that period. The appreciation of all the above facts leads to only one inevitable conclusion that no cenvat credit was availed by the assessee and as such, there was no violation of the condition of the notification. 6. Even the lower authorities in their impugned orders have nowhere disputed the fact that such amount of service tax reflected by them in their ST-3 returns was utilized by them. The condition of the notification, which grants refund of service tax paid on various services utilized for authorized operations on SEZ, is that no cenvat credit would be availed by the assessee. Such availment cannot be held to be there unless su
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