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2018 (7) TMI 518 - AT - Central ExciseCENVAT credit - Cement - Supplies to SEZ from DTA - exempt goods or not - common input services used in manufacture of dutiable as well as exempt goods - Rule 6(3)(b) / 6(3)(i) of CENVAT Credit Rules - Held that - The issue settled in appellant own case ULTRA TECH CEMENT LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, TIRUPATI 2015 (2) TMI 181 - CESTAT BANGALORE , where it was held that after enactment of Special Economic Zones Act, 2005 w.e.f. 10-2-2006, supplies to SEZ from DTA are treated as export of dutiable goods and entitled to benefits as such, including that of exception in Rule 6(6) of CENVAT Credit Rules, 2004, of not requiring separate accounts of dutiable and non-dutiable inputs/services to be maintained - appeal allowed - decided in favor of appellant.
Issues:
1. Whether cement cleared to SEZ developers without payment of duty should be treated as exempted goods under Rule 2(d) of the CENVAT Credit Rules, 2004. 2. Applicability of Rule 6(3)(b) / 6(3)(i) of CENVAT Credit Rules for reversing CENVAT credit availed on common input services. 3. Invocation of extended period of limitation alleging suppression of facts. 4. Retrospective applicability of the amendment to Rule 6(6)(i) of CENVAT Credit Rules regarding exclusion of suppliers to SEZ developers. 5. Sustainability of the impugned order and consequent relief to the appellant. Analysis: 1. The case involved the clearance of cement to SEZ developers without payment of excise duty, which the department argued should be treated as exempted goods under Rule 2(d) of the CENVAT Credit Rules, 2004. The appellant contended that such clearances did not amount to clearance of exempted goods, citing precedents and settled law. The Tribunal referred to previous decisions and held that supplies to SEZ from DTA are treated as export of dutiable goods, entitling benefits under Rule 6(6) of the CENVAT Credit Rules. Therefore, the impugned order was set aside, and the appeal was allowed with consequential relief. 2. The issue of reversing CENVAT credit availed on common input services in relation to the cement cleared to SEZ developers was also addressed. The appellant argued that Rule 6(3) was not applicable in their case, relying on legal precedents and settled law. The Tribunal, following the established legal position, ruled in favor of the appellant, holding that the impugned order was not sustainable and required to be set aside. 3. The appellant challenged the invocation of the extended period of limitation alleging suppression of facts by the department. The appellant's counsel argued that the department failed to produce evidence to establish suppression and that the issue involved a complex interpretation of law. However, the Tribunal did not delve deeply into this issue as the primary focus was on the substantive legal matters concerning the treatment of goods under the CENVAT Credit Rules. 4. The retrospective applicability of the amendment to Rule 6(6)(i) of the CENVAT Credit Rules, which included supplies to SEZ developers, was discussed. The appellant contended that the amendment was clarificatory in nature and should be applied retrospectively to the impugned period. The Tribunal, in line with previous judgments and legal principles, acknowledged the retrospective applicability of such amendments, further supporting the appellant's position in the case. 5. Ultimately, after considering all the arguments and legal precedents presented by both parties, the Tribunal found in favor of the appellant on the substantive issues related to the treatment of goods under the CENVAT Credit Rules. The impugned order was deemed unsustainable and was set aside, granting the appellant consequential relief as per law.
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