2009 (6) TMI 705 - AT - Central Excise

Summary

Issues:
1. Interpretation of the term "export" in the context of clearances to SEZ unit.
2. Applicability of Central Excise Act and rules to SEZ units.
3. Refund of accumulated Cenvat Credit for supplies to SEZ.
4. Compliance with conditions for refund under Rule 5 of Cenvat Credit Rules.
5. Justification for staying the operation of the impugned Orders.

Analysis:

1. The judgment deals with the interpretation of the term "export" concerning clearances to SEZ units. It highlights the definitions provided in the Customs Act, 1962, and the SEZ Act, 2005. The Tribunal notes that the Central Excise Act, 1944, and its rules do not specifically address refund provisions for accumulated credit in such scenarios. The Tribunal concludes that the Boards' Circular lacks legal sanctity and cannot override the provisions of the Central Excise Act, 1944, or its rules.

2. Regarding the applicability of the Central Excise Act and rules to SEZ units, the Tribunal observes that Rule 5 of the Cenvat Credit Rules, 2004, allows for the refund of Cenvat Credit when the final product is exported out of the country. However, in the case at hand, where pre-fabricated steel building structures are supplied to the SEZ for construction within the country, the purpose of Rule 5 is not fulfilled. The Tribunal suggests that suitable amendments to Rule 5 may be necessary to cater to supplies made to SEZ units.

3. The judgment delves into the issue of refunding accumulated Cenvat Credit for supplies to SEZ units. It references Notification No. 5/2006-C.E. (N.T.), dated 14-3-2006, which lays down conditions and limitations for such refunds. The Tribunal notes that the fulfillment of these conditions in the case under consideration is not clearly established. The lack of evidence regarding the impossibility of adjusting the accumulated credit is highlighted as a crucial factor for considering cash refunds.

4. In analyzing the compliance with conditions for refund under Rule 5 of the Cenvat Credit Rules, the Tribunal points out that the Assistant Commissioner's order questioned the lack of evidence regarding the impossibility of credit adjustment. The Commissioner (Appeals) made a general observation about compliance but did not specifically address how all conditions and limitations under the relevant notification were met. This lack of detailed findings is noted by the Tribunal.

5. Lastly, the judgment addresses the justification for staying the operation of the impugned Orders passed by the Commissioner (Appeals). The Tribunal acknowledges the Revenue's strong case for a stay and consequently allows the stay petitions filed by the Revenue. This decision is made to maintain the status quo until further proceedings.

In conclusion, the judgment provides a detailed analysis of the issues related to the interpretation of legal provisions concerning exports to SEZ units, refund of accumulated Cenvat Credit, and compliance with relevant rules and notifications. The decision to stay the operation of the impugned Orders reflects a cautious approach pending further legal considerations.