2012 (2) TMI 502 - AT - Central Excise

Clearance from DTA to SEZ - exempt goods - whether the assessees were liable to consider, during the material period, their clearances to SEZ developers to be clearances of exempted goods? - Held that - decision in the case of Sujana Metal Products Ltd. vs. CCE, Hyderabad 2011 (9) TMI 724 - CESTAT, BANGALORE , squarely covers the issue where it was held that the definition of the term export under the SEZ Act shall prevail over the definition of term export under the Customs Act. Therefore, supplies made to SEZ from DTA units shall be treated as export.supplies made to SEZ are held to be export provisions of Rule 6 of CCR does not arise at all - appeal disposed off - decided in favor of assessee.

Summary

Issues:
1. Whether clearances to SEZ developers should be considered as clearances of exempted goods.
2. Applicability of Rule 6(3)(b) of the CENVAT Credit Rules, 2004.
3. Demand of duty on finished goods supplied to SEZ developers.
4. Imposition of penalty under Section 11AC of the Central Excise Act.
5. Confirmation of demand against M/s. Penna Cement Industries Ltd.
6. Demand against India Cements Ltd. and refraining from imposing penalty.
7. Appeal by M/s. Sobha Developers Ltd. regarding demand confirmation.
8. Interpretation of Rule 6(3) of the CCR for service provided to SEZ developers.
9. Applicability of Notification No.9/2009-ST for service tax.
10. Reference to the decision in Sujana Metal Products Ltd. vs. CCE, Hyderabad.
11. Treatment of supplies to SEZ units as export.
12. Application of CENVAT Credit Rules for recovery of amounts on goods supplied to SEZ units.
13. Amendment to Rule 6(1) of the CCR, 2004 by Notification No. 50/2008-C.E. (N.T.).
14. Invoking extended period of limitation for demand of amounts and imposition of penalties.

Analysis:
1. The appeals involved a substantive issue of whether clearances to SEZ developers should be treated as clearances of exempted goods. The assessees supplied excisable goods to SEZ developers without maintaining separate accounts, leading the Department to demand 10% of the sale value for goods supplied to SEZ developers as exempted goods under Rule 6(3)(b) of the CENVAT Credit Rules, 2004.

2. The Department's demand was contested based on the SEZ Act, 2005 provisions coupled with the CCR. Despite contesting, the demands were confirmed against the assessees. Notably, in the case of M/s. Penna Cement Industries Ltd., the Commissioner(Appeals) set aside the demand for a specific period, which was under challenge in the Department's appeal. Similarly, in the case of India Cements Ltd., the Commissioner confirmed the demand but refrained from imposing a penalty under Section 11AC of the Central Excise Act.

3. A separate appeal by M/s. Sobha Developers Ltd. challenged the demand confirmation against them for providing output services to SEZ developers. The issue revolved around availing CENVAT credit on common inputs without separate accounts, leading to a demand under Rule 6(3) of the CCR. The appeal was allowed based on a precedent decision favoring the assessee.

4. The decision in Sujana Metal Products Ltd. vs. CCE, Hyderabad was referenced, emphasizing that supplies to SEZ units should be treated as exports, thereby impacting the application of CENVAT Credit Rules for recovery of amounts on goods supplied to SEZ units. The interpretation of relevant provisions favored the assessees, leading to the orders being set aside and no imposition of penalties.