2016 (44) STR 65 (Tri-Mumbai) Kolland Developers Pvt. Ltd. vs. Commissioner of C.Ex., Nagpur

Whether refund claim of SEZ developer can be rejected on the ground
that input services on which refund sought were not pre-approved from approval
Committee before its availment?

Facts

The Appellant was a developer of
SEZ and had filed a refund claim in respect of input services availed in terms
of the notification 12/2013-S.T. dated 01/07/2013. The refund claim was
rejected by the lower authorities on the ground that the specified input
services were not approved at the time of its availment.

Before the tribunal, the
appellant, relying on the decision of 
“mahindra  engineering  Services 
ltd –  2015  (38) S.t.r. 841 (tri.-mum)”, argued that
erstwhile exemption notification (09/2009-ST) did not mandate pre-approval of
services before its availment.

Held

The tribunal observed that, in
case of “Mahindra Engineering Services Ltd.”, the said notification was an
exemption notification and at the time of availment, the conditions of
exemption have to be fulfilled. However, the Notification No. 12/2013 (which is
under dispute) provides for refund of tax paid on specified input services
which are approved by approval committee and to avail the exemption the
assessee must fulfill the conditions of the said notifications at the time of
availing the services. Accordingly, appeal was dismissed and refund claim
rejection was Held to be appropriate.