Wednesday 17 June 2020

EZ Instructions - Setting Up of Creche, Canteen Facility by SEZ Unit

We wish to draw your attention to the recent letter issued by an Authorized Officer, SEZ to few SEZ units which refers to Instruction No. 95 dated June 11, 2019 and states that facilities like cafeteria, crèche, gymnasium and similar facilities do not enjoy any exemptions, drawback, concessions or any other benefits under the SEZ Act and requires the SEZ Units to report compliance with the said Instruction by identifying goods / services used exclusively or commonly for setting-up / operation of said facilities.

 

The letter from the AO specifically identifies services like Renting / Housekeeping or maintenance as services which could have been used for setting-up / operation of the aforementioned facilities but does not provide any mechanism to bifurcate the services which are common used for the aforementioned facilities and for conducting regular operations of export of goods / services and hence the value of such services / goods in question on which SEZ benefits are intended to be denied can be very high.

 

Background to the aforementioned letter

 

Instruction No. 95 dated 11/06/2019 was issued by Ministry of Commerce & Industry, SEZ Division directing DCs’ and UACs’ to approve setting up of cafeteria, crèche, gymnasium and similar facilities for the exclusive use of the unit with a condition that:

a.              No exemptions, drawback, concession or any other benefit should be claimed under Section 7 or Section 26 of the SEZ Act for creating and operating such facilities; and

b.              NOC to be obtained from Developer and necessary NOC/clearances/approvals from relevant authorities;

 

Per the above instruction, a unit can establish a cafeteria, crèche, gymnasium and similar facilities for the exclusive use of the unit as per proviso to Rule 11(5) of the SEZ Rules only with the permission of DC/UAC and NOC of Developer and will not be entitled to any tax benefits for setting up such facilities.

 

Impact on SEZ Unit:

1.              Can set-up and operate the facilities as above viz., cafeteria, crèche etc;

2.              Any inward supply of services or goods which bear a direct nexus with the above facilities will not be considered for upfront exemption of supply without payment of IGST to the SEZ unit (Eg. Gym & canteen equipment, gym instructor, canteen & gym supplies, manpower supplies, maintenance services, leasing of space etc.);

3.              Operating such facilities and deriving revenue out of such operation would be made taxable. Special care to be taken:

a.              In case of employee recoveries for such facilities;

b.             Recovery of common costs between entities;

c.              Rendering services to third parties which do not qualify to be ‘authorised operation’.

 

Impact on Developer:

1.              Benefit of tax exemption (GST) on output service (viz. leasing services) to SEZ unit for above facilities is not available and hence taxable;

2.              Developer to keep a track of all such cases where he has given approval to set up such facility including cases where he has allowed the units in the past to ensure taxes are charged in each such case.

 

Our Comments

 

The Instruction is not in line with the objectives as well as the regulations of the SEZ Law and accordingly an appropriate response needs to be filed before the Authorized Officer on various grounds including

1.              Instruction not in sync with the Rule 11 of the SEZ Rules;

2.              Instructions going beyond the SEZ Act;

3.              Highlight that SEZ Act has not been amended to confer GST Exemptions and hence claiming of benefits under GST does not come under the purview of the said instruction.


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