By Puloma Dalal, Jayesh Gogri, Chartered Accountants
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Notification no. 4/2004-ST dated 31-03-2004 grants exemption to services only when the same are consumed within Special Economic Zone.
Facts:
The department issued a SCN for the period from 01-12-2005 to 31-07-2007 contesting that the appellants wrongly availed benefit of exemption Notification no. 4/2004-ST dated 31-03-2004 in respect of CHA services rendered outside SEZ. The appellants contended that during the period under consideration, services provided to SEZ unit were exempted vide the said Notification. Further, as per section 26 of the Special Economic Zone Act, 2005 and Rule 31 of the Special Economic Zone Rules, 2006, every developer and entrepreneur was entitled for exemption from service tax on the taxable services provided to a developer or a unit to carry out the authorised operations in a SEZ. Accordingly, Notification no. 4/2004-ST dated 31-03-2004 should be read alongwith the said section and Rule and interpreted to provide service tax exemption to the appellants.
The department submitted that the said Notification was a conditional exemption and was available only with respect to services provided within SEZ. Since the services were not provided within SEZ, benefit of the said exemption was not available to the appellants.
Held:
The Tribunal observed that in terms of various decisions of the Hon’ble Supreme Court, an exemption notification has to be interpreted as per the language used therein and the notification should be interpreted strictly to ascertain whether a subject falls in the notification. Accordingly, exemption under Notification no. 4/2004-ST dated 31-03-2004 was available only if the services were consumed within SEZ. The cannon of interpretation “Expresso unius est exclusion alterius” was applicable to the said notification which meant express mention of one thing excluded all others and in the present case, services consumed within SEZ were only covered by the said notification which was a conditional exemption. Further, the notification was issued in 2004 whereas the SEZ Act and Rules were introduced in 2005 and 2006 and therefore, the notification cannot be interpreted on the basis of SEZ Act and SEZ Rules. If the intention of the legislation was to align the exemption with SEZ Act or Rule, then the notification would have been amended to reflect the same. In view of no prima facie case in favour of the appellants and no pleading for financial hardship and taking into consideration the interest of revenue, the appellants were directed to pre-deposit part of the service tax demand.
