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Judgment
C.L. Mahar, Member (T)
The matter before me is regarding rejection of a refund claim of Rs. 9,192/- filed by the appellant under Notification No. 17/2011-ST dated 01.03.2011 pertaining to period February, 2011 to May, 2011.
1.2 The brief facts are that the appellant is a unit in the Special Economic Zone (SEZ) engaged in the manufacture of pharmaceuticals product and is also holding service tax registration. The appellant is functional unit under Pharmez, Sarkhej Bavla National Highway, Ahmedabad and is registered with the office of the Development Commissioner, KASEZ, Ministry of Commerce, Gandhidham. The appellant has sought refund of above mentioned amount on two grounds. Firstly, the service tax paid on the renting of immovable property service and the rent paid for their manufacturing premises located at Plot No. 15,16 and 17 of Pharmez, Sarkhej Bavla National Highway and secondly on the service tax paid on the Consulting Engineer Service.
The department has taken a view that the rent invoices are for the rent collected by M/s. Zydus Infrastructure Pvt. Ltd for the office located at Plot No. 10 and 11 of Pharmez wherein the registered premises are at Plot No. 15,16 and 17 of Pharmez. Since the rent invoices are in name of some other premises, hence the refund cannot be allowed.
3.1 With regard to small amount of Consulting Engineer Service , it is the contention of the department is that the invoice issued by the service provider dated 27.12.2010 which is much before 01.03.2011 when the unit got approval as SEZ unit, hence, the refund on such invoices is not admissible.
3.2 Thirdly, the department stated that the declaration filed by the claimant in Form A-1 for input services are on 06.05.2011 and 20.06.2011.
While the refund claim pertains to the period February, 2011 to May, 2011 and therefore, the refund of the service tax paid to the service provider prior to filing of declaration under Form A is inadmissible.
I heard both the sides. I find that the department has neither tried to establish that the appellant does not exist at the given address of Plot No 15, 16 and 17 of the Pharmez. I accept the explanation advanced by the learned Advocate that Plot No. 10 and 11 were only temporary office while the factory premises were under construction during the relevant period . I am of the view that since renting of Immovable Property is included in the approved list of taxable services issued by the Development Commissioner , KASEZ and therefore authorities should have sanctioned the refund claim of the same.
4.1 The second ground for rejection of the refund claim was that the declaration in Form A-1 in respect of service provider and M/s. Paramba Innotech was filed on 06.05.2011 and in respect of Pigeon Express Couriers was filed on 20.06.2011 and since the refund claim pertains to the period February, 2011 to May, 2011, the refund was not allowed. The rejection of refund on this ground appears to be absolutely flimsy. The facts of the matter remains that there is no objection or denial of the fact that the appellant have received the service and service tax has been discharged on these services. Hence, I allow the refund of amount pertaining to this service tax also.
4.2 I also find that the similar issue has been decided by the Commissioner (Appeals) vide its order dated 19.10.2011 which covers the refund claim of the periods just prior to this period which were also pertaining to the same issue and refund has been allowed by the Commissioner (Appeals) and accepted by the department.
In view of above, I set aside the Order- In- Appeal and appeal is allowed.