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2013 (10) TMI 1299 - CGOVT - Central ExciseDenial of rebate claim - Clearance to SEZ could not be equated with that of export - clearances would not be eligible for grant of rebate under Rule 18 of the Central Excise Rules, 2002 - Held that - since the deemed export to 100% EOU is considered as physical export and therefore clearances to SEZ are also be treated as physical exports for the purpose to grant rebate under Rule 18 of Central Excise Rules, 2002. - rebate claim of duty paid on goods cleared to SEZ is rightly held admissible by Commissioner (Appeals) under 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Government finds no infirmity with said Order-in-Appeal - Decision in the case of CCE v. NBM Industries 2011 (9) TMI 360 - GUJARAT HIGH COURT followed - Decided against Revenue.
Issues Involved:
1. Definition and interpretation of 'export' under Central Excise Rules. 2. Eligibility of rebate claim for goods cleared to SEZ under Rule 18 of Central Excise Rules, 2002. 3. Applicability of legal precedents and circulars regarding rebate on supplies made to SEZ. Detailed Analysis: Issue 1: Definition and Interpretation of 'Export' under Central Excise Rules The central issue revolves around the definition of 'export' for the purposes of rebate claims under Rule 18 of the Central Excise Rules, 2002. The applicant department contends that the term 'export' should be interpreted as per Section 2(18) of the Customs Act, 1962, which defines export as taking goods out of India to a place outside India. This interpretation is supported by various legal precedents, including the Hon'ble CESTAT's decision in Commissioner of Central Excise, Thane-I v. M/s. Tiger Steel Engineering (I) Pvt. Ltd., which held that the fictional definition of 'export' under Section 2(m)(ii) of the SEZ Act, 2005 cannot be applied for rebate purposes under the Central Excise Rules. Issue 2: Eligibility of Rebate Claim for Goods Cleared to SEZ under Rule 18 of Central Excise Rules, 2002 The respondent's rebate claim was initially rejected by the Assistant Commissioner on the grounds that clearance to SEZ does not equate to physical export and hence is not eligible for rebate under Rule 18. However, the Commissioner (Appeals) overturned this decision, holding that such clearances are indeed eligible for rebate. The applicant department challenged this, arguing that only physical exports qualify for rebate, as per the definition under the Customs Act, 1962. Issue 3: Applicability of Legal Precedents and Circulars Regarding Rebate on Supplies Made to SEZ The government's analysis noted that the department relied on various judgments, including the Hon'ble High Court of Gujarat in M/s. Essar Steel Ltd. v. Union of India, which held that the movement of goods from DTA to SEZ is treated as export by a legal fiction under the SEZ Act, 2005, but this fiction should not extend beyond the statute. However, the government also considered C.B.E. & C. Circular No. 29/2006-Cus., which clarifies that supplies from DTA to SEZ on payment of duty are eligible for rebate under Rule 18, subject to certain conditions. This position was reiterated in Circular No. 6/2010-Cus., which maintained that rebate is admissible for supplies made from DTA to SEZ. Further, the government observed that the judgment of the Hon'ble CESTAT in the case of M/s. Tiger Steel Engineering Pvt. Ltd. did not specifically address the admissibility of rebate claims for goods cleared to SEZ. Additionally, the Hon'ble Gujarat High Court in CCE v. NBM Industries held that deemed exports to 100% EOU should be treated as physical exports for the purpose of refund of unutilized Cenvat credit, which supports the respondent's position. Conclusion: In light of the above analysis, the government concluded that the rebate claim of duty paid on goods cleared to SEZ is rightly held admissible by the Commissioner (Appeals) under Rule 18 of the Central Excise Rules, 2002. The government's decision aligns with the clarifications provided in the relevant C.B.E. & C. circulars and the legal precedents that support treating deemed exports to SEZ as physical exports for the purpose of rebate claims. Therefore, the revision application filed by the department was rejected, and the order of the Commissioner (Appeals) was upheld. Order: The revision application is thus rejected, and the order of the Commissioner (Appeals) is upheld, confirming the eligibility of rebate claims for goods cleared to SEZ under Rule 18 of the Central Excise Rules, 2002.
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