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TMI Blog2016 (6) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... vt. Ltd., has set aside the impugned order and allowed the appeal with consequential relief. 2. We have heard Mr. Y. Hariprasad, Sr. CGSC appearing for the appellant. 3. The learned CGSC appearing for the appellant fairly conceded that the Tribunal cannot be said to have committed error in following the decision of this Court in case of Fosroc Chemicals (India) Pvt. Ltd., reported at 2015 (318) ELT 240 (Kar). However, he only submitted that the matter has been carried before the Apex Court against the decision of this Court and in view of the said development, the Tribunal ought to have independently considered the matter. 4. We may record that this Court in the above referred decision has observed thus: "In all these appeals, the commo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of verification of the returns of the assessee it was seen that the assessee had not exercised an option to pay an amount equivalent to credit attributable to inputs used in the manufacture of goods cleared to SEZ Developers, nor had paid an amount equal to 10% of the total price, excluding sales tax and other taxes. Therefore, the assessee was issued show-cause notice by the Additional Commissioner and the Commissioner, LTU, Bangalore, demanding payment. After receipt of the explanation, the demand was confirmed under the provisions of section 11AC of the Central Excise Act, 1944 read with Rule 15(2) of the Cenvat Credit Rules 2004 along with interest and penalty. Aggrieved by the said order, the assessee preferred appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to a unit in a special economic zone." 6. As is clear from the aforesaid provision, the benefit of non- reversal/maintenance of separate inventory was extended when the excisable goods were cleared to a "unit" in a special economic zone. The said benefit was not extended when the excisable goods removed without payment of duty or cleared to a "developer" of a special economic zone for their authorized operation. However, in exercise of the powers conferred by section 37 of the Central Excise Act, 1944 (1 of 1944) and section 94 of the Finance Act, 1994 (32 of 1994), the Central Government amended the Cenvat Credit Rules, 2004 by issue of a notification as under:- Notification: 50/2008-C.E. (N.T.) dated 31-Dec-2008 Cenvat Credit Rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the place of an existing one is no more res-integra. The Constitution Bench of the Hon'ble Apex Court in the case of SHAMARAO V. PARULEKAR vs. THE DISTRICT MAGISTRATE, THANA, BOMBAY & Others reported in AIR 1952 SC page 324, dealing with the scope of substitution of a provision by way of amendment held as under:- "When a subsequent Act amends an earlier one in such a way as to incorporate itself or a part of itself into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that there is no need to refer to the amending Act at all." 10. Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the word 'substitute' has been defined to mean 'to serve or cause to serve in place of another person or thing'; 'to replace (an atom or group in a molecule) with (another atom or group)"; or 'a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague'. 16. By reason of the aforementioned amendment no substantive right has been taken away nor any penal consequence has been imposed. Only an obvious mistake was sought to be removed thereby. 17. There cannot furthermore be any doubt whatsoever that when a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberally construed." 13. The Parliament has enacted the Special Economi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in that context the aforesaid amendment by Notification No.50/2008 CE (N.T) dated 31.12.2008 was brought in, to clarify the doubt. As the said amendment is clarificatory in nature, that is the reason why it was brought by way of "substitution". The effect of the said "substitution" is that the Cenvat Rules 2004 are to be read and construed as if the altered words had been written into the Rules of 2004 with pen and ink and the words "to a developer of the SEZ for their authorized operation" was there from the inception. This is the understanding of the Government as is also clear from the circular issued by the CBEC bearing No.29/2006-Cus., dated 27.12.2006 wherein clause 4 reads as under:- "4. In the light of the aforesaid provisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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