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TMI Blog2016 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as Education Cess and Higher Education Cess for the period from 01.07.2008 to 18.06.2009, when the payment of any such duty, cess is exempted vide Section 7 of the SEZ Act, 2005 subject to such terms and conditions and limitations as may be prescribed by the concerned authorities. However, in supersession of the said claim, subsequently the applicant submitted revised claim of Rs. 13,36,029/-. The contention of the department in this regard was that as the- applicant has submitted their initial refund claim on 04.08.2009 hence their refund claim for the period from 01.072008 to 04.08.2008 has become time barred and hence non grantable. Moreover, as detailed in the Notification No. 19/2004-CE(NT) dated 06.09.2004 [equivalent to Notification No. 42/2001-CE(NT) dated 26.06.2001] duties and cesses allowable for rebate under Rule 18 of the Central Excise Rules, 2002 are under:- a. Central Excise Act, 1944 b. Additional duty of Excise (goods of Special Importance) Act 1957 c. Additional Duty of Excise (Textiles and Textiles Articles) Act 1978 d. Nations Calamity contingent duty leviable under Section 136 of the Finance Act, 2001 e. Special Excise duty collected under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment on the following grounds: 4.1. That the instant Order-in-Appeal travels beyond the notice dated 07.05.2010 and the Order-in-Original dated 12.07.2010 passed thereunder in as much as the instant refund claim arising out of inadvertent payment of jute cess, education cess and higher education cess thereon, in respect of supplies from the applicant's DTA unit to its SEZ unit was never sought to be denied on the ground of unjust enrichment in the original proceedings. That the proposal to deny the refund claim on the ground of unjust enrichment was raised by the department for the first time only in the departmental appeal against the said Order-in Original. That at no stage of original proceedings the applicant was required to furnish any documents to satisfy the test of unjust enrichment as the same was 8/2016-CX not at all applicable to the instant refund claim. That it is a settled law that a case which the revenue never canvassed and which the applicant was never required to meet in the original proceedings cannot be made out in favour of the revenue at the appellate stage. That the Order-in-Appeal in so far as it rejected the refund claim on the ground of unjust enrichm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected without any mandate of law in view of the provisions of Article 265 of the Constitution of India, 1950. 4.5. That no separate terms, conditions and limitation have been prescribed for the purpose of claiming exemption under Section 7 of the SEZ Act. That Rule 30 of the SEZ Rules only lays down the procedure, in general, for procurement of goods from the DTA in terms of the said Rule, the DTA supplier supplying goods to a unit in the SEZ is required to clear the goods, as in the case of exports either under bond or as duty paid goods under claim of rebate on the cover of AREI referred to in Notification No. 42/2001-CE(NT). That Rule 30(1) of the SEZ Rules could only confer an option to the DTA unit to either claim the exemption upfront by supplying goods to the SEZ Unit without payment of jute cess under bond or pay the same and claim the exemption by way of rebate. That the said rule could not be interpreted in a way so as to deny the benefit of exemption conferred by Section 7 of the SEZ Act as attempted in the order, in as much as rules cannot over-ride the Act. That the jute goods were supplied to the SEZ unit on payment of jute cess, the refund claim arose because of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this case on 05.08.2015 was attended by Shri Arvind Baheti, Senior Associate, Khaitan & Co. on behalf of the applicant who reiterated the grounds of revision application and submitted that this is a refund claim under Section 3 (4) of the Jute Cess Act for duty paid by mistake on goods cleared from DTA to SEZ, that such cess was clearly exempted under Section 7 of the SEZ Act read with 1st schedule , that the Commissioner (Appeals) has rejected the Order-in-Original mainly on the ground of unjust enrichment which is not applicable in cases of exports and secondly was never a point of dispute in the original order. Personal hearing was also held on 21.04.2016, which was attended by Shri Arvind Baheti, Senior Associate, Khaitan & Co on behalf of the applicant who reiterated the earlier submission and also stated that the show cause notice proceeds on assumption that claim is under Rule 18 and not Section 11 of the Act; that it is duty paid under mistake of law; that in terms of Section 7 of SEZ Act Jute Cess is exempt; that in terms of Section 51 of the SEZ Act, the Act has over riding effect if any provisions of any other law for the time being in force is inconsiste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who vide Order-in-Appeal No. 11-12/Kol-VII/2013 dated 09.09.2013 disallowed the refund claim of Jute Cess and ordered to deposit the sanctioned amount of Rs. 32,822/- along with appropriate interest into Government account. Now the applicant has filed this revision application on the grounds stated in para 4 above. 8. From a perusal of the impugned Order-in-Appeal, Government observes that aggrieved by the impugned Order-in-Original both the applicant and the department had filed appeal under Section 35 of the Act before the Commissioner (Appeals). The applicant had appealed mainly on the grounds that refund claim was filed under Section 11 B of the Central Excise Act as per exemption provisions of Section 7 of the SEZ Act, 2005 which exempts jute cess read with Section 3 of the Jute Cess Act; that the adjudicating authority on its own and without any basis has assumed that such refund has been claimed under Rule 18 of the Central Excise Rules and Notifications there under; that in terms of Rule 30(1) of the SEZ Rules what is required is that the goods should move under the cover of ARE 1 referred under Notification No. 42/2001 dated 26.06.2001 and the same remains undisputed; t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order dates to - (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse; (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-by any country on territory outside India; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty, (d) credit of any duty a//owed to be utilized towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998. 10. Government finds that the main issue in the impugned Order-in-Appeal is the admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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