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M/s. Sai Wardha Power Ltd. Versus Commissioner of Central Excise, Nagpur

2015 (5) TMI 527 - CESTAT MUMBAI

Refund claim - Jurisdiction of Tribunal - SEZ unit located in India - Held that:- Wordings of clause (b) of proviso to Section 35B(1) is clear that only those cases where the goods have been exported to any country or territory which is outside of India, will fall under this clause and only in those cases this Appellate Tribunal has no jurisdiction to entertain the appeal. However, in the present case the goods were not exported to any country outside of India, but supply to SEZ which is undispu .....

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n to entertain the appeal. - matter shouldbe placed before the Larger Bench to decide the preliminary issue that in the matter of refund/rebate against the supply of goods to the SEZ located in India, whether the appeal lies before this Appellate Tribunal or a Revision Application before the Joint Secretary (Revisionary Authority) to Government of India. - Matter referred to larger bench. - Appeal Nos. E/89802/13, E/89952 to 89954/13 & E/89963 to 8966/14 - Final Order No. M/1912/2015/EB - Da .....

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Shri D.H. Nadkarni, learned Advocate submits that in the present appeals the issue involved is rebate of duty paid on the goods supplied to Special Economic Zone. He submits that appeals are maintainable before this Tribunal. He invited our attention to the proviso to Section 35B(1) and proviso clause (b) according to which only in those cases, appeals shall not lie to the Appellate Tribunal where rebate of duty of excise on goods exported to any country or territory outside India or an excisabl .....

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on 35B. He further submits that in the earlier occasion this Appellate Tribunal has entertained the appeals in the identical cases and disposed of on merits. Some of these cases are cited as under:- (i) Ultratech Cement Ltd. Vs. Commissioner of Central Excise, Nagpur - 2015 (315) ELT 238 (Tri.-Mumbai) (ii) Zydus Mayne Oncology Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Vapi - 2010 (262) ELT 280 (Tri.-Ahmd.) (iii) Commissioner of Central Excise, Bangalore Vs. Shree PLA Pvt. Ltd. .....

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refund of claim on goods supply to SEZ. Therefore the supply made to SEZ being treated as export, it squarely falls under clause (b) of proviso to Section 35B(1), accordingly this Appellate Tribunal has no jurisdiction to entertain the present appeals. He submits that for claiming rebate, the right forum is the Hon'ble Joint Secretary - Revisionary Authority to Government of India against the impugned order. He submits that this Appellate Tribunal in the following judgement did not entertai .....

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dgment Hon'ble Joint Secretary - Revisionary Authority to Government of India has entertained the Revision Applications and disposed of on merits:- (i) P.K. Tubes & Fittings Pvt. Ltd. - 2012 (276) ELT 113 (GOI) (ii) ACE Hygiene Products Pvt. Ltd. - 2012 (276) ELT 131 (GOI) (iii) Rohit Poly Product Pvt. Ltd. - 2012 (284) ELT 137 (GOI) (iv) Indo Amines Ltd. - 2012 (284) ELT 147 (GOI) (v) Essel Propack Ltd. - 2014 (312) ELT 946 (GOI) In view of the above decisions given by the Hon'ble J .....

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;28. Section 2 of the Customs Act is titled as 'definitions'. Sub-section (11) of section 2 {sub-section 2(11)} explains what is 'customs area'. Sub-section (18) of section 2 {sub-section 2(18)} explains what is 'export'. Sub-section (23) of section 2 {sub-section 2(23)} explains what is 'import'. Sub-section (27) of section 2 {sub-section 2(27)} explains what is 'India'." Hon'ble High Court of Gujarat in the case of Plastene India Ltd. Vs. Union .....

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(1) which is reproduced below:- "(b) A rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India." From the plain reading of above provision, we find that the wordings of clause (b) of proviso to Section 35B(1) is clear that only those cases where the goods have been exported to any country or territory which is outside of India, will fall .....

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