Writ Petition No. 5125 of 2014. Case: Sai Wardha Power Company Ltd. Vs Union of India. Bombay High Court

Case NumberWrit Petition No. 5125 of 2014
Party NameSai Wardha Power Company Ltd. Vs Union of India
CounselFor Apellant: Shri S.P. Dharmadhikari, Senior Counsel with C.S. Dharmadhikari, Counsel. and For Respondent: Shri Rohit Deo, ASGI and F.T. Mirza, Counsel.
JudgesMs. Vasanti A. Naik and Shri Prasanna B. Varale, JJ.
IssueConstitution of India - Article 226
Citation2015 (39) STR 952 (Bom)
Judgement DateJuly 14, 2015
CourtBombay High Court

Judgment:

Vasanti A. Naik, J. (Oral)

  1. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.

  2. By this petition, the petitioner Sai Wardha Power Company Limited, Warora seeks a direction to the respondent No. 2 - Deputy Commissioner, Customs, Central Excise & Service Tax, Chandrapur to forthwith issue the authorization in Form A-2 to the petitioner. A declaration that the petitioner is entitled to avail the benefit of ab initio exemption from Service Tax in terms of Notification No. 12 of 2013 is also sought.

  3. Few facts giving rise to the petition are stated thus -

    The petitioner is a power generating unit in the Special Economic Zone (hereinafter referred to as "SEZ" for the sake of brevity) in Warora. The unit of the petitioner is governed by the provisions of the Special Economic Zones Act, 2005 (hereinafter referred to as "the Act of 2005"). By a Notification issued by the Government of India, Ministry of Finance in the year 2009, all SEZ units were exempted from payment of Service Tax utilized for the authorized operations of the SEZ units. Under the Notification of the year 2009, an SEZ unit was required to pay the Service Tax initially and then seek its refund by claiming exemption. A notification was issued by the Government, bearing Notification No. 17 of 2011 providing for an option to the SEZ units not to pay the Service Tax ab initio. Certain conditions were required to be complied while availing ab initio exemption from payment of Service Tax. Under Clause 2 of Notification No. 12 of 2013, the SEZ unit was required to get the list of taxable services for the authorized operations of the SEZ unit, approved by the ''Approval Committee'', a statutory body constituted under the provisions of Section 13 of the Act of 2005. The SEZ unit was required to furnish a declaration in Form A-1, verified by the Specified Officer of the SEZ along with the list of specified services. As per Notification No. 12 of 2013, on the basis of the declaration made in Form A-1, an authorization was liable to be issued by the Jurisdictional Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, to the SEZ unit in Form A-2. The SEZ unit was required to furnish to the Jurisdictional Superintendent of Central Excise a quarterly statement, in Form A-3 furnishing the details of specified services received by it without payment of Service Tax. The notification further enjoined a duty on the SEZ unit to furnish an undertaking, in Form A-1...

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