TMI Blog2023 (11) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... s raised the contention that he has been wrongly denied the benefit of the exemption Notification No. 45/2017-Cus., which provides different levels / measures of exemption benefits to the re-imported goods depending upon which export benefits, like duty drawback, rebate etc., were availed and subject to several conditions - the Commissioner has noted, that the appellant has submitted few sample invoices and on perusal of one tax invoice issued by the DTA, namely M/s Lupin Limited, Palghar to the appellant bearing Invoice No. 0000002152 dated 08.03.2017, it is observed that it has been dispatched on payment of Central Excise duty and drawback too have been claimed, however, the appellate authority has failed to examine the issue of exemption benefit under the said notification in detail, giving specific reasons. The matter needs to be remanded on the applicability of the exemption notification and whether the appellant is entitle to any benefit in terms thereof - Appeal partly dismissed and part matter on remand. - MS. BINU TAMTA, MEMBER (JUDICIAL) Shri Mahesh B. Raichandani, Advocate for the appellant Shri Mahesh Bhardwaj, Authorised Representative for the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt enacted the Special Economic Zones Act, 2005. The Special Economic Zone Rules were brought into effect from 10.02.2006. The Act was enacted with a view to provide for the establishment, development and management of special economic zones so as to encourage and promote exports, generate additional economic activities and employment opportunities. 7. Special economic zones created under the SEZ Act are on a different footing. Section 53 declares a special economic zone to be a territory outside the customs territory of India for the purpose of undertaking the authorised operations. Thus the Act itself treats SEZ as an area outside India and such zones are deemed to be a foreign territory for trade operations, duties and tariff purposes and have therefore been accorded special status. Section 30 of the SEZ Act makes any goods removed from special economic zone to the domestic tariff area, chargeable to duties of customs, including anti-dumping, countervailing, and safeguard duties. Further, Section 51 of the SEZ provides for a non-obstinate clause, conferring overriding effect upon the Act vis-a-vis any other law. 8. The clear and unambiguous provisions of section 30 has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EZ to DTA and it was observed: Analyzing the above provisions, particularly Sec. 30 of the SEZ Act, it is clear that on clearance or removal of the goods from the SEZ to DTA, the applicable duties of Customs as levied under the CTA, 1975 are required to be paid at the rate of duty and tariff valuation, if any applicable, would be the rate as in force on the date of its removal or payment of duty as the case maybe. 8.3. Similarly, in Suchi Fastners Pvt. Ltd. Vs. Commissioner of Central, Excise ST, Vadodara, 2021 (378) ELT 329 (Tri-Ahmad) the Tribunal was dealing with the refund claim of customs duty and SAD paid in excess on clearance of goods from SEZ unit to DTA customers, held in para 6 : However, in the facts and circumstances of this case, I find that findings of Commissioner (Appeals) are not correct as under section 30 of the SEZ Act, 2005, goods removed from SEZ to DTA are chargeable to customs duties. From the aforesaid decisions, it is evident that on clearance of goods from SEZ unit to DTA, customs duty etc. is payable under section 30 of SEZ Act. 9. The learned Counsel for the appellant has placed much reliance on the provisions of Rule 48(3) of SEZ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified by Customs authorities or may be sold in the Domestic Tariff Area on payment of duty on the gold or silver or platinum content in the said scrap: Provided that the value of samples of gold or silver or platinum sweepings or scrap or dust taken at the time of clearance and sent to the Government Mint or Private Mint for assaying and assessment shall be finalized on the basis of reports received from the Government Mint or Private Mint, as the case may be. (3) Surplus power generated in a Special Economic Zone s Developer s Power Plant in the SEZ or Unit s captive power plant or diesel generating set may be transferred to Domestic Tariff Area on payment of duty on consumables and raw materials used for generation of power subject to the following conditions, namely: (a) proposal for sale of surplus power received by the Development Commissioner shall be examined in consultation with the State Electricity Board, wherever considered necessary: Provided that consultation with State Electricity Board shall not be required for sale of power within the same Special Economic Zone; (b) norms for production of a unit of power shall be approved by the Approval Committee; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of an enactment are simple and there is no ambiguity there is no scope for interpretation. A three Judge Bench of the Apex Court in Kalyan Roller Flour Mills Private Limited Vs CCE, 2014 (16) SCC 375, observed that when the language is clear and plain, the courts cannot enlarge the scope by interpretative purposes. The relevant para is quoted below:- 15. In Oswal Agro Mills Ltd. v. CCE, 1993 Supp (3) SCC 716, this Court has observed that: Where the words of the statute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The court would interpret them as they stand. The object and purpose has to be gathered from such words themselves. Words should not be regarded as being surplus nor be rendered otiose. Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings. The safer and more correct course to deal with a question of construction of statute is to take the words themselves and arrive, if possible, at their meaning, without, in the first place, reference to cases or theories of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 48(3) has to be read together with rule 47 and not in isolation. Attention is invited to the principle laid down by the Apex Court in J.K. industries Ltd., Vs. Union of India- 2007 (13) SCC 673, observing that, Therefore, power to make subordinate legislation is derived from the enabling Act and it is fundamental principle of law, which is self evident that the delegate on whom such powers is conferred has to act within the limitations of the authority conferred by the Act. It is equally well settled that rules made on matters permitted by the Act in order to supplement the Act and not to supplant the Act, cannot be held to be in violation of the Act. A delegate cannot override the Act either by exceeding the authority or by making provisions inconsistent with the Act. On similar lines the Apex Court in Yogender Kumar Jaiswal Vs. State of Bihar -2016 (3) SCC 183, where the rule provided the Special Courts to follow summary procedure whereas the Act provided to follow the warrant procedure for trial of cases before a Magistrate, the Court observed that Rules have to be in accord with the Act. The Rules can supplement the provisions of the Act but decidedly they cannot supplan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file the Bill of Entry and without their authorization a unit in SEZ also cannot file such documents. The noticee has mis-interpreted the rule to the extent that though they are the supplier of the goods, they are claiming as re-importers of the goods which is not acceptable. The duty charged at the time of clearance from the SEZ unit is very much in accordance with the provisions of Rule 48(3) read with Notification No. 45/2017-Cus dated 30.06.2017 and there is no provision for refund of such duties as claimed by the noticee. d. Moreover, the noticee is claiming the refund on a presumption that all re-imports are duty free. It is not the case at all. As per the provisions of governing re-import of goods under Customs Act, nowhere it is mentioned that all re-imports are duty free. On the other hand Section 20 of the Act provides for levy of duty on all re-imported goods in the same manner as the goods being imported for the first time. However, some conditional exemption is provided and no benefit of exemption can be claimed without fulfilling these conditions. In the present case the noticee is merely assuming that all re-imports are duty free and they being re-importers of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
