TMI Blog2015 (3) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule (19) of CER, which is duly approved by the jurisdictional Central Excise authority and also accepted LUT executed by the appellants for this purpose. The Hon ble High Court in the [2013 (5) TMI 460 - CHATTISGARH HIGH COURT] decision also held that the amendment introduced in Rule 6(6) on 31.12.2008, substituting clause (i) by adding both the units of SEZ and developers is retrospective in nature. The Hon ble High Court of Andhra Pradesh has upheld the Tribunal Order in the case of Sujana Metals vide High Court Order (2015 (3) TMI 781 - ANDHRA PRADESH HIGH COURT), dismissed the Revenue appeal. - goods cleared to SEZ developers are treated as export as the appellants followed ARE-I provision. The amended provisions of Rule 6 (6) is applicable retrospectively as held by the Hon ble High Court The demand confirmed by the adjudicating authority is not sustainable. Accordingly, we set aside the impugned order - Decided in favour of assessee. - E/727/2009 - Final Order No. 40862 / 2014 - Dated:- 6-8-2014 - Shri P. K. Das And Shri R. Periasami,JJ. For the Appellant : Shri Raghavan Ramabadran For the Respondent : Shri P. Arul, Supdt. (AR) ORDER Per: R. Periasa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed under Rule 19 of CER for all the clearances made to SEZ developers. He submits that the goods cleared to SEZ developers are dutiable, but, cleared without payment of duty in terms of Rule 19 of the CER. He further submits that the amendment introduced under Rule 6 (6) (i) adding SEZ developers by notification No. 50/2008-CE (NT) dated 31.12.2008 is retrospective in nature. He relied upon the following case laws in support of his contention. 1. Sujana Metal Products Ltd. Vs. CCE, Hyderabad 2009 (243) ELT 542 (Tri.-Bang.) 2. Surya Roshni Ltd. Vs. Commissioner, Rohtak 2010 (256) ELT 85 (Tri.-Del.) 3. CCE, Ahmedabad Vs. Maize Products 2008-TIOL-596-HC-AHM-CX 4. TN Newsprint and Papers Ltd. Vs. CCE, Trichy 2010-TIOL-318-CESTAT-MAD 5. GOI Vs. Indian Tobacco Association 2005 (187) ELT 162 6. UOI Vs. Steel Authority of India Ltd. 2013 (297) ELT 166 (Chhattisgarh) 7. Sujana Metal Products Ltd. Vs. CCE Hyd. 2011 (273) ELT 112 (Tri.-Bang.) 8. AP HC judgment CEA No. 40/12 dt. 02.07.2013 3. On the other hand, the Ld. AR on behalf of the Revenue reiterates the findings of the Commissioner and submits that during the relevant period Rule 6 (6) (i) of CCR excludes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Notification No. 50/2008-NT dated 31.12.08, which is reproduced as under:- Rule 6(6) (i) (i) cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operations; or We find that the appellants while clearing the goods followed the procedure stipulated under Rule (30) of SEZ and Rule (19) of CER. All the clearances are treated as export duly accompanied by ARE-I as per ECR. The ARE-I is duly certified by the jurisdictional superintendent. 5. It is noticed that the identical issue has been discussed in detail in the Tribunal s Order in the case of Sujana Metal Products Limited (supra). Subsequently, the Hon ble High Court of Chhattisgarh and in the case of UOI Vs. Steel Authority of India Ltd (supra) has discussed the issue at length and held that the goods supplied to SEZ developers are to be treated as exports under Section 2 (m) of SEZ Act. The relevant portion of the Hon ble HC order is reproduced as under:- 30.?The principle envisaged in Excise Act and the 2002 Rules as well as the Customs Act is the same as traditionally how the excise and customs duties were understood. It is clear from their provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rritorial limits of the country; the goods supplied to the unit or to the developer in SEZ do not go outside the country, yet, in view of the definition in Section 2(m) of the SEZ Act, they are to be treated as export. 37. In the present case, the Assessee had supplied goods from the domestic tariff area to a developer and it is to be treated as an export in view of sub-section 2(m) of the SEZ Act. In case it is treated to be export then all benefits as given to export under any other law should be given. 38. In case, the general principle as well as the framework of the Customs Act or Excise Act is to be understood, in that event, there should not be any excise duty on anything which is supplied to a unit or developer. The principle that is applicable to the unit in the SEZ should also apply to a developer as well. 39. The SEZ Act treats the unit as well as the developer on the same footing. The obligations arising under the Excise Act or the 2002-Rules or the 2004-Rules for a unit in SEZ should be same for a developer of SEZ; they should have same liabilities, same benefits. However, this was not so : there was some distinction in the 2004-Rules as they were initially fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bliterated. Both stand in the same footing. It is now in consonance with the Article 14 of the Constitution of India. 47. Nevertheless, in case the submission of the Department - that the amended substituted sub-rule came into force from the date of its publication in the official gazette i.e. on 31-12-2008 - is accepted, then the discrimination would be there prior to 31-12-2008 though after this date it would not be there. 48. The Central Government is a State within the meaning of Article 12 of the Constitution. It is prohibited to discriminate under Article 14 of the Constitution. In case the submission of the Department is accepted, it would leave the Central Government to the charge of discrimination. Could this be the intention; can this be presumed; should this be the result? 49. In our opinion the emphatic answer to the aforesaid question is No. 50. It is clear from the nature of the excise duty as it has been traditionally understood to be duty only on the manufacture of those goods that are to be consumed within the country and not on the goods to be exported. This is also framework of the Excise Act. As the supply of the goods to a developer of SEZ is treat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
