9911796707
TMI Blog2012 (7) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... tly placed orders on M/s. Tulsyan NEC Ltd., Chennai for supply of TMT Bars. In these cases where supplies could not be completed by Tulsyan NEC Ltd., Chennai Unit, such orders have been diverted by their registered office to their Annur unit. The Annur Unit cleared the goods under ARE-1s to the said contractors at the SEZ premises. The contractors/Co-developers submitted ARE-1s to the Customs Officers at SEZ who countersigned the same after due verification and sent the same to Range Officer, Central Excise Range-fl Annus. Against the said ARE-1s, the applicants filed 14 rebate claims on 3-6-2008, 15 rebate claims on 23-7-2008 and 3 rebate claims on 29-8-2008 involving a total amount of Rs. 1,47,68,371/- before the lower authority. On scrutiny, it was noticed by the lower authority that the applicants have not submitted some of the documents in spite of several reminders for proper verification by the Range Officer. Hence, the lower authority has issued respective show cause notices proposing to reject the claims. After due process of law, the lower authority has rejected all the five claims cited supra under the impugned orders mainly on the grounds of non-submission of certain do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the applicants was also produced. 4.2 That the goods were supplied to (1) Suzlon Infrastructure Ltd. (2) Suzlon Rotor International Ltd. (3) SE Forge Ltd. (4) KGISL IT Park India Pvt. Ltd. These buyers were developers/co-developers. They were not contractors. It is true that the applicants supplied goods to contractors also. They are (1) Sapoorji Pallonji & Co. Ltd. (2) Consolidated Construction Consortium Ltd. and (3) Ceedeeyes Housing & Infrastructure. 4.3 The Commissioner (Appeals) has observed that the possibility of availing Cenvat credit by the contractors was also not ruled out since the goods removed by the applicants were not tailor-made but of general use in nature. This presumption of the Commissioner (Appeals) concurring with the Deputy Commissioner is baseless. M/s. Consolidated Construction Consortium Ltd., M/s. Sapoorji Pallonji & Co. Ltd. and M/s. Ceedeeyes Housing & Infrastructure, the contractors as per their letter dated 27-9-2008, 3-7-2008 and 14-7-2008 addressed to the Assistant Commissioner of Central Excise, Annur, Range-I stated that "We hereby certify that we have not claimed Cenvat credit for the supplies made by Tulsyan NEC Ltd. We have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erroneous. 5. Personal hearing was scheduled In this case on 1-6-2012. Shri R.K. Sharma, Sr. Counsel appeared on behalf of the applicant who reiterated the grounds of revision application. He further stated that in applicant's own case pertaining to Chennai-II Commissionerate the rebate is sanctioned in the same circumstances. He also produced additional written submission wherein apart from reiterations of grounds of revision application, it has been pleaded that - 5.1 The applicant filed refund claim of excise duty paid on the goods supplied to the developers/co-developers/constructors of SEZ for which they have claimed to be eligible in terms of Board Circular No. 29/2006-Cus., dated 27-12-2006 read with Rule 18 of Central Excise Rules, 2002 and the Notification No. 19/2004-C.E. (N.T.), dated 6-9-2004 issued thereunder. 5.2 Both the lower authorities have rejected the claim of the applicant on the ground of non-submission of disclaimer certificate. In this regard, the applicant inter alia state that it is clearly provided under the C.B.E. & C.'s Manual Chapter 8 at Para 8.3 that disclaimer certificate is required in case where the claimant is other than export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders on their Chennai office/Unit. There is no dispute to the factual details of amounts involved, manner of clearances and receipt of subject goods by the Customs officers posted as SEZ. In all the ARE-1 Forms, Customs have endorsed a certificate that goods have been received in full. It is further noted that the subject claims stands rejected either due to non-submission of the desired documents/records to the original rebate sanctioning authorities or due to alleged non-observance of relevant procedures, thereby leading to a major apprehension that such improper supply falls within the ambit of concept of unjust enrichment under Section 11(b)2(i) of the Central Excise Act, 1944. The applicant exporter herein had submitted some of the documents and tried to explain his right to impugned rebate claims but the lower authorities remained non-satisfied by the same and resultantly after due process of law rejected the rebate claims in the above order-in-original and order-in-appeal. Government further notes that although the applicant exporter as well as the respondent department are relying on the same set of Section/Rules of Central Excise Rules and Special Economic Zone Acts along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (N.T.), dated 6-9-2004 is admissible only when the goods are exported out of India and not when supplies are made to SEZ. 3. The matter has been examined. The Circular No. 29/2006-Cus., dated 27-12-2006 was issued after considering all the relevant points and it was clarified that rebate under Rule 18 is admissible when the supplies are made from DTA to SEZ. The Circular also lays down the procedure and the documentation for effecting supply of goods from DTA to SEZ, by modifying the procedure for normal export. Clearance of duty free material for authorized operation in the SEZ is admissible under Section 26 of the SEZ Act, 2005 and procedure under Rule 18 or Rule 19 of the Central Excise Rules is followed to give effect to this provision of the SEZ Act, as envisaged under Rule 30 of the SEZ Rules, 2006. 4. Therefore, it is viewed that the settled position that rebate under Rule 18 of the Central Excise Rules, 2002 is admissible for supplies made from DTA to SEZ does not warrant any change even if Rule 18 does not mention such supplies in clear terms. The field formations are required to follow the circular No. 29/2006 accordingly. F.No. DGEP/SEZ/13/2009 &ems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imer certificate" etc. Here, Government finds various submitted grounds of the applicant as considerable including that he being the exporter claimant is not statutorily required to submit a disclaimer certificate in terms of para 8.3 of Chapter 8 of C.B.E. & C.'s Manual on Supplementary Instructions but still he has submitted a no Cenvat credit availment certificate to counter the apprehension of the department. 9.2 Since the supplies are made to SEZ developer/Co-developer and contractors the Central Excise Invoices are issued on the name of buyers. It is observed that in case contactors, invoices were to be issued on the name both contactors and co-developers/developers as required under SEZ Rules. The rebate claim will be admissible if the duty paying document are valid and there is no discrepancy in such document. 9.3 In this regard, Government is of the opinion that the case matter involves provisions of implementation of Special Economic Zone Act, 2005 and Special Economic Zone Rules, 2006 which has an overall overriding effect. These stands made applicable for such matters vide C.B.E. & C. Circular No. 29/2006-Cus., dated 27-12-2006. It is this circular which sti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
