2013 (1) TMI 444 - AT - Central Excise

Non preparation of separate accounts been maintained in respect of inputs or input services clearing identical goods to buyers in the DTA, on payment of duty - demand to pay 10% of the price (excluding taxes) of the goods cleared to the SEZ developer - Held that - As decided in Sujana Metal Products Ltd. Vs. CCE, Hyderabad 2011 (9) TMI 724 - CESTAT, BANGALORE supplies to SEZ from DTA units were exports and hence not to be considered as exempted goods for purposes of Rule 6 of the CCR 2004. The appellant cannot be required to honour the impugned demand as they were clearing only dutiable products to the DTA and hence there was no question of maintenance of separate accounts in respect of inputs or input services and no question of applicability of Rule 6(3) of the CCR 2004 - appeal of assessee allowed.

Summary

Issues:
1. Interpretation of Rule 6(3) of the CENVAT Credit Rules 2004 regarding demand raised on appellant for clearing products to SEZ developers without payment of duty.
2. Consideration of clearances to SEZ developers as exempted goods.
3. Requirement of maintaining separate accounts for inputs or input services.
4. Applicability of Rule 6(3) of the CCR 2004 in the case of clearances to SEZ developers.
5. Comparison with the case of Sujana Metal Products Ltd. Vs. CCE, Hyderabad.

Analysis:
1. The judgment addresses the question of whether the demand raised on the appellant under Rule 6(3) of the CENVAT Credit Rules 2004 is sustainable. The appellant was clearing products to SEZ developers without paying duty, while also clearing identical goods to DTA buyers with duty payment. The Department considered the clearances to SEZ developers as exempted goods due to the lack of separate accounts for inputs or input services.
2. Reference is made to the case of Sujana Metal Products Ltd. Vs. CCE, Hyderabad, where the Tribunal held that supplies to SEZ from DTA units were exports and not to be considered as exempted goods under Rule 6 of the CCR 2004. The Department had appealed this decision, but no stay order was presented.
3. Based on the precedent set by the Sujana Metal case, the appellant cannot be obligated to fulfill the demand as they were only clearing dutiable products to the DTA, eliminating the need for separate accounts for inputs or input services. Consequently, Rule 6(3) of the CCR 2004 does not apply in this scenario. The impugned order is overturned, and the appeal is granted.
4. The judgment emphasizes the distinction between clearances to SEZ developers and DTA buyers, highlighting the different treatment under Rule 6 of the CCR 2004. The decision underscores the importance of maintaining separate accounts and the implications for demand raised by the Department.
5. The comparison with the Sujana Metal case serves as a significant legal precedent in determining the applicability of Rule 6(3) of the CCR 2004 to clearances to SEZ developers. The absence of a stay order on the previous decision further strengthens the appellant's position in challenging the demand raised by the Department.