TMI Blog2023 (9) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... department that in the instant case, matter relates to supplies made to SEZ by DTA unit, specially to SEZ developers, the Cenvat credit was sought to be denied to the supplier under Rule 6 (6) of the Cenvat Credit Rules, 2004 on the ground that during the material time no exemption was available to the appellant and they were required to reverse the credit to the extent the supplies made to SEZ developers. To emphasize the issue as well as the view of the department, Para 8 to 18 of the impugned order are highlighted. The same is reproduced below:- 8 . In this regard, I observe that prior to 31.12.2008, in terms of the said Rule 6(6)(1) of Cenvat Credit Rules, 2004, the provisions of sub-rules (2), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are cleared to a unit in a SEZ. This Rule was further amended vide Notification No. 50/2008-CE(N.T.) dated 31.12.2008, The Notification is reproduced herein below- Notification No. 50/2008-Central Excise (N.T.) New Delhi the 31 December, 2008 G.SR. (E)- In exercise of the powers conferred by section 37 of the Central Excise Act 1944 (1 of 1944) and section 94 of the Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government issued a clarificatory Notification No. 95/94-CE dated 25.04.1994. It was not a new notification granting exemption for the first time in respect of parts of power driven pumps to be used in the factory for manufacture of pumps but clarified the position and made the position explicit which was implicit. In that context, the notification 95/94-CE was held to be clarificatory. Whereas in this case, SEZ developer was never included in the said exclusion clause of Rule 6(6) prior to 31.12.2008. In the case of Indian Tobacco Association (supra), the question of interpretation of word 'substitution' appearing in the amendment of a notification extending the scope / benefit of DEPB to various additional port/ICD was involved. In the facts of that case, initially under the DEPB scheme, Inland container port was not included in list of ports of registration. On representation from association of exporters, name of one such port substituted' in the notification. It was held that the substitution would have retrospective effect from date of original notification on the ground mainly that (i) it was not stated expressly to be prospective (i) only an obvious mistake wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention to the contrary, will have only prospective effect. I rely upon the cases of M/s Jay Mahakali Rolling Mills - 2007 (215) ELT 11 (SC), Spice telecom 2006 (203) ELT 538 (SC), Union of India v. Ganesh Das Bhojraj - 2000 (116) E.LT. 431 (S.C.), M/s L T Limited - 2000 (119) ELT 51 (T-LB), Mahindra Mahindra Limited - 2007 (211) ELT 481 (T-Mum) and M/s Doon Institute of Information Technology P Limited- 2008 (12) STR 459 (T-Del) to hold that the Notification No. 50/2008-CE (NT) is neither clarificatory nor retrospective and accordingly reject the plea of the appellant on this score. In the case of L T Ltd 2000 (119) ELT 51 (T-LB), similar amendment was made in the erstwhile Central Excise Rules, 1994 [Modvat Credit Rules] vide a notification in 1992 to allow credit in respect of goods cleared to FTZ or EOU in terms of Rule 57C. The Tribunal held the said amending notification to be prospective in nature. The ratio of that case is squarely applicable to the case in hand. In the present case, the Central Government, in exercise of the powers conferred by Section 37 of the Central Excise and Salt Act, 1994, amended Rule 6(6) by issuing Notification No. 50/2008-CE(NT) dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) For the purpose of sub-section (1), the Central Government shall have and shall be deemed to have the power to make rules with retrospective effect as if the Central Government had the power to make rules under section 37 of the Central Excise Act 1944, (1 of 1944) retrospectively, at all material times. THE EIGHTH SCHEDULE (see Section 144) Provisions of CENVAT Credit Rules, 2004 to be amended Amendment Period of effect of amendment (1) (2) (3) Sub Sub-rule (6A) of rule 6 of the CENVAT Credit Rules, 2004 as inserted by CENVAT Credit (Amendment) Rules, 2011 vide notification number G.S.R. 134(E), dated the 1st March, 2011 [3/2011-Central Excise (N.T.). dated the 1st March, 2011. In the CENVAT Credit Rules, 2004, in rule 6, after sub-rule (6), the following sub-rule shall be inserted with effect from the 10th day of R. February, 2006, namely:- (6A) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the taxable services are provided, without payment of service tax, to a Unit in a Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2010(249) E.L.T. 03 (GUJ -HC), wherein the context of the term export contained in Customs Act vis- -vis SEZ Act has been clarified. As per the verdict in Para 41.3.1. and 41.3.2. of the judgment, The term export having been defined in the Customs Act, 1962, for the purpose of that Act, there is no question adopting or applying the meaning of the said term under another enactment for any purpose of levying duty under Custom Act, 1962 In other words, a definition given under an Act cannot be displaced by a definition of the same term given in another enactment, more so, when the provisions of the first Act are being invoked. Even in the absence of a definition of the term in the subject statute, a definition contained in another statute cannot be adopted since a word may mean different things depending the setting and context. The movement of goods from Domestic Tariff area to the Special Economic has been treated as export by a legal fiction created under the SEZ Act, 2005. A legal Zone fiction is to be restricted to the statute which created it. The said decision of the Hon'ble High Court has also been upheld by the Hon'ble Supreme Court as reported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable only in relation to the issues relating to SEZ Act and Rules made thereunder and the same cannot be applied to Cenvat Credit Rules, 2004, unless it is expressly mentioned in both the enactments. Neither I find any stipulation in the Cenvat Credit Rules, 2004 nor is there any argument from the appellant to hold that the provisions of SEZ Act shall be applicable to Cenvat Credit Rules, 2004. The Cenvat Credit Rules, 2004 is a separate piece of legislation made by the Legislature under Central Excise Act, 1944 with a specific purpose to allow credit of duty/tax paid on the input or input services to remove cascading effect and laid specific condition for availing the benefit of the same with their wisdom. Though Rule 18 and 19 of Central Excise Rules, 2002 have been made applicable to supplies of goods to SEZ units for the purpose of rebate vide Circular No. 06/2010-Cus. dated 19.03.2010 and 29/2006-Cus dated 27.12.2006 by the Government with specific and restrictive purpose only. The same cannot be made applicable to the cases falling under the ambit of a different statute altogether having different provisions and purpose of their enactment. Moreover, no such clarification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is not permissible while interpreting a statute as per settled law. I place reliance on the following cases: (i) In the case of Dharmandra Textile Processors vs. Union of India reported in 12008 (231) ELT.3 (S.C.)], the Apex Court held that :- it is a well settled principle in law that the court cannot read anything into a statutory provision or a stipulated condition which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent . (ii) The above views have been expressed by the Honourable Supreme Court in the case of Novopan India Ltd vs. CCE. reported in (1994(73) ELT.769 (S.C.). holding that ; a notification has to be interpreted in the light of the words employed by it and not on any other basis. This was so held in the context of the principle that in a taxing statute, there is no room for any intendment, that regard must be had to the clear meaning of the words and that the matter should be governed wholly by the language of the notification (iii) Further, in case of CCE vs. Sunder Steels Ltd., reported in [2005(181) ELT. 154 (SC.)) the Apex Court has a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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