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TMI Blog2013 (10) TMI 1310X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate claim on account of goods cleared by them to M/s. Hindustan Unilever Ltd., Kandla SEZ, under Rule 18 of the Central Excise Rules, 2002. However, it is seen that the respondents have not furnished the Bill of Exports against all the copies of the said ARE-1s, which appeared to be necessary in fulfilment of the condition for claiming the export entitlement i.e., rebate under Rule 18 of the Central Excise Rules, 2002, read with sub-rule (3) of Rule 30 of SEZ Rules, 2006. Against this background show cause notices were issued and accordingly the rebate claims were rejected. 3. Being aggrieved by the said orders-in-original, the respondents filed appeals before Commissioner (Appeals), who allowed the said appeals with consequential relief. Commissioner (Appeals) held that rebate of duty paid on goods supplied to SEZ is admissible under Rule 18 of Central Excise Rules, 2002 read with Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. 4. Being aggrieved by the impugned orders-in-appeal, the applicant department has filed these revision applications under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds : 4.1 Supply ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(m)(ii) of the SEZ Act cannot be looked for as it purports only to make the SEZ unit an exporter. In other words, the term 'export' used in Rule 5 of the Cenvat Credit Rules, 2004 stands for 'export'; which is 'physical export' out of the country, envisaged under the Customs Act. We take this view because, as we have already indicated, anybody other than SEZ unit cannot be allowed to claim any benefit under the SEZ Act/Rules". The clarification issued vide Circular No. 6/2010-Cus., dated 19-3-2010 has not the binding effect, being contrary to the law. This proposition has been upheld by the Constitutional Bench of Hon'ble Supreme Court in CCE, Bolpur v. Ratan Melting & Wire Industries - 2008 (231) E.L.T. 22 (S.C.) = 2008 (12) S.T.R. 416 (S.C.). A copy of assessed "Bill of Export" is a fundamental document along with the copy of the relevant ARE-1 bearing endorsement of the Customs Officer/specified officer in charge of the SEZ, in order to consider the clearance as a genuine one effected to the SEZ in accordance with sub-rule (3) of Rule 30 of the SEZ Rules, 2006 and further to consider the rebate eligibility under Rule 18 of the Central Excise Rules, 2002. As the said Bill of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne reasons for said delay not exceeding 3 months, condone the delay under Section 35EE(2) and proceeds to decide these applications on merits. 9. Government notes that department has contended that definition of 'export' given under the Customs Act, 1962 has been traditionally adopted for the purposes of the Central Excise Act and rules made thereunder. The term 'export' is a physical export out of the country as envisaged in the Customs Act. Department has relied upon judgment of Hon'ble Tribunal in the case of M/s. Tiger Steel Engineering Pvt. Ltd. - 2010 (259) E.L.T. 375 (T-Mumbai) wherein it was held that 'export' has same meaning as defined in Section 2(18) of Customs Act and not defined under Section 2(m)(ii) of SEZ Act, 2005. 9.1 Government notes that as per para 5 of C.B.E. & C. Circular No. 29/2006-Cus., dated 27-12-2006 (F. No. DGEP/SEZ/331/2006), the supplies from DTA to SEZ on payment of duty shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to fulfilment of conditions laid therein. Further Rule 30(1) of SEZ Rules, DTA Unit may supply goods to SEZ, as in the case of exports either under bond or as duty paid goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion offered by the Board cannot be applied to the instant case where the issue under consideration is altogether different." From above it is quite clear that CESTAT has not given any finding on the admissibility of rebate claim of duty paid on goods cleared to SEZ/SEZ Units. 9.4 Government further notes that Hon'ble Gujarat High Court has held in the case of CCE v. NBM Industries vide order dated 8-9-2011 reported on 2012 (276) E.L.T. 9 (Guj.) = 2013 (29) S.T.R. 208 (Guj.) as under : "Revenue is in appeal against the judgment of the Tribunal dated 6th March, 2009 [2009 (246) E.L.T. 252 (Tribunal) raising following questions for our consideration : "(i) Whether the Tribunal was right in allowing refund of the Cenvat credit availed on inputs used in the manufacture of goods cleared by DTA unit to a 100% Export Oriented Unit, following CT-3/ARE-3 procedure, where the provisions of Rule 5 of the Cenvat Credit Rules, 2004 are not applicable, such clearance being 'deemed export'? (ii) Whether the Tribunal was right in allowing refund of the Cenvat credit availed on inputs used in the manufacture of goods cleared by DTA unit to a 100% E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Ltd. (supra) was also challenged before the Apex Court and the Apex Court vide decision reported in 2007 (215) E.L.T. A102 (S.C.) held while dismissing the Revenue's appeal against the Tribunal's order, that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only physical exports and not deemed exports should have been taken into account. It is also important to note that the decision of the Tribunal in the case of Sanghi Textiles Ltd. v. Commissioner of Customs & Central Excise (supra) was also challenged by the Revenue before the Apex Court and the Apex Court vide order dated 16-8-2007 dismissed the Revenue's appeal. While dismissing the said appeal, Apex Court has referred to its decision in the case of Ginni International Ltd. (supra) and reiterated that the Tribunal in its impugned order had held that once Development Commissioner giving permission to the appellant, a 100% EOU, to sell goods in DTA up to a specified value, Revenue cannot go beyond the permission and dispute it holding that for fixing the limit only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 12 definition of export as given in SEZ Act cannot be incorporated. In the instant case the issue export benefit like rebate/drawback cannot be equated with the issue of charging export duty. 11. Government further notes that as per Section 5 of SEZ Act, 2005, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Rule 30(1) of SEZ Rules, 2006 stipulates that DTA supplier shall clear the goods to SEZ Unit or Developer as in the case of exports either under bond or as duty paid goods under claim of rebate on the cover of ARE-1 referred to in Notification No. 42/2001-C.E. (N.T.), dated 26-6-2001. The said notification is now replaced by new Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004. Similarly, drawback benefit and other export entitlements are also made admissible to SEZ suppliers. So the C.B.E. & C. Circular discussed above issued in the light of provisions of SEZ Act/Rules cannot be called illegal as contended by department. 12. Government further notes that Commissioner (Appeals) has categorically recorded in his findings that said goods were received in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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