TMI Blog2016 (6) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... /2016 - - - Dated:- 10-6-2016 - MR. JAYANT PATEL AND MR. B.SREENIVASE GOWDA JJ. APPELLANT; (BY SRI Y HARIPRASAD, SR. CGSC) JAYANT PATEL J., JUDGMENT The present appeal is directed against the order dated 08.09.2015 passed by the Customs, Excise Service Tax Appellate Tribunal (hereinafter referred to as the Tribunal for the sake of brevity), whereby the Tribunal, in view of the decision of this Court in case of The Commissioner of Central Excise And Service Tax Vs. Fosroc Chemicals (India) Pvt. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed by the Tribunal relying upon the decision of the Bench in SUJANA METAL PRODUCTS vs. CCE, Hyderabad (2011(273) ELT 112 (Tribunal Bangalore) by holding that it squarely covered the issue in favour of the respondent. The Tribunal held that the said amendment to Rule 6(6) by Notification No.50/2008- CE is clarificatory in nature and therefore retrospective. As such, the assessee is entitled to the said benefit. Aggrieved by the said order, the revenue has preferred these appeals. 4. The question that arises for our consideration in these appeals are, Whether the Third amendment of 2008 to the Cenvat Credit Rules, 2004, extending the benefit of exemption from reversal of Cenvat credit on inputs used for manufacture in case of excisable goods, removed without payment of duty which are either cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operation, is to be construed as prospective in operation or retrospective? 5. Rule 6 of Cenvat Credit Rules 2004 which provide the said benefit prior to amendment reads as under: 6. Obligation of manufacturer of dutiable and exempted goods and provider of taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side. 8. Per contra, the learned counsel appearing for the assessee supported the impugned order. 9. What is the effect of substitution of a provision in 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. Yet another Constitution Bench of the Hon ble Supreme Court in the case of SHYAM SUNDER Others vs. RAM KUMAR Another reported in AIR 2001 SC page 2472, while dealing with the question whether a substituted provision necessarily means the amended provision is retrospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes of undertaking the authorized operations. The word export has been defined under the Act at section 2(m). According to the definition of the word export, vide Section 2(m) (ii) export means supplying goods or providing services, from the Domestic Tariff Area to a Unit or Developer. Such exports were exempted from duty of Central Excise under Section 26 of the SEZ Act, 2005 and consequently application of Cenvat Credit Rules. Section 151 of the Special Economic Zones Act 2005, overrides the provision of all other laws for the time being in force, notwithstanding anything inconsistent therein with the provision of the Special Economic Zones Act, 2005. This section therefore overreaches and eclipses the provisions of any other law containing provisions contrary to the SEZ Act, 2005. Though the definition of the word export in the SEZ Act, in Sec.2(m) included supply of goods to a Unit or Developer , in clause (i) of sub-rule (6) of Rule 6 of the Cenvat Credit Rules, 2004 the word Developer was conspicuously missing and only unit was included before the 2008 amendment. It is in that context the aforesaid amendment by Notification No.50/2008 CE (N.T) dated 31. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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