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TMI Blog2012 (7) TMI 875X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of implementation of Special Economic Zone Act, 2005 and Special Economic Zone Rules, 2006 which has an overall overriding effect - excisable goods manufactured by the registered factory and cleared on payment of Central Excise Duty as per the invoices/ARE-1s/Bill of Export which clearly indicates the consignee’s place as an SEZ. The goods are received in full in SEZ as per certification of Customs Officers recorded on the relevant ARE-1s/Shipping Bills/Bill of Exports. The receipt of said goods in SEZ is not disputed in these cases. - Since the verification of requisite documents as observed in foregoing para is required to be done by original authority to determine the admissible rebate claim amount, the case is required to be remanded back for fresh consideration. - Matter remanded back - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Act clearly states that the concept of unjust enrichment would not attract in the case of goods exported. The Commissioner (Appeals) states that export to the SEZ was not an export out of India and accordingly the concept of unjust enrichment shall be attracted. It is submitted that export to SEZ is in fact an export out of India in terms of Section 2(i) of the SEZ Act, 2005. As per this sub-section domestic tariff area means the whole of India including the territorial waters and continental shelf but not include areas of SEZ. It is crystal clear from this section that SEZ is not a domestic tariff area which means that any supply of goods to the SEZ is an 'export'. In terms of Section 2(m) of the SEZ Act, 2005 supplying goods to a unit or developer from domestic tariff area is 'export'. The procedure to be followed is the same as for import from abroad and export out of the country. The Commissioner has therefore erred in holding that principles of unjust enrichment will apply to goods exported from domestic tariff area to SEZ. Further, Rule 18 of the Central Excise Rules, 2002 relating to export of goods permits payment of excise duty and claiming the same as rebate after th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of ARE-1 and bill of export filed by the supplier. The Commissioner states that the applicants did not furnish any material evidence before the lower authority to prove that the goods were supplied on the basis of ARE-1 and bill of export. Here again the Commissioner has taken for granted whatever has been said by the Deputy Commissioner without caring to verify the records. It is submitted that ARE-1s were filed along with the shipping bills. These shipping bills were duly acknowledged by the Customs officer stationed in the SEZ. Further, ARE-1s were filed at the time of removal of goods and they were also submitted to the Range Superintendent. The Assistant Commissioner of Central Excise, Tirupur Division has not perused the file properly. The covering letter for the rebate claim clearly states that 'kindly find enclosed our rebate application form 'C' for rebate in triplicate. The description and quantity mentioned in the ARE-1, invoice and the bill of export are one and the same and also the entire quantity has been dispatched. The value of the goods indicated in the ARE-1 is the transaction value as Section 4. This value is equal to home consumption value. Apart from enclos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected only value of the goods (FOB price). This is, at the best they can produce some disclaimer certificate/no objection certification/purchase order issued by their buyers to account that the goods were supplied to the applicant without Central Excise Duty, which is sufficient evidence to not applying principle of unjust enrichment or any other benefit to the applicant. 5.3 That the lower authority has rejected the claim of the applicant stating that in absence of documentary evidence that the goods were used by the SEZ Unit/developers, the supplies do not qualify for the benefit of rebate. In this regard, the applicant inter alia state that the applicant become eligible for rebate only on supplies of the goods to the developers/co-developers/contractors. However, it is duty only on the part of the developers/co-developers/ contractors of relevant SEZ to account the actual use of the goods before the monitoring authority of the concerned SEZ in terms of sub-rule (6) of Rule 12 of SEZ Rules, 2006 and 2nd proviso of Rule 27 of SEZ Rules, 2006. 5.4 Finally, The applicants have relied upon the following judgments : • UOI v. Suksha International & Nutan Gems and An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; In this regard, Government peruses the definitions given in Section 2(m)(ii) of the Special Economic Zones Act, 2005 (as amended) which is as under : "2(m) "export" means - (i) ………………………. (ii) supplying goods, or providing services, from the domestic Tariff Area to a Unit or Developer; or (iii) ………………………. Further, the 2(i) of the same stipulates as under :- "2(i) "Domestic Tariff Area" means the whole of India (including the territorial waters and continental shelf) but does not include the areas of the Special Economic Zones." 8.1 The plain reading of said provisions makes it clear that export means supplying of goods/services from DTA to SEZ. For the purpose of impugned stated exports and consequential rebate claims, there are no such two separate terms as "treated" as exports and "exports out of India". Factually and legally, there is only one term i.e. exports. 8.2 In this regard, Government observes that on this issue C.B.E. & C. has clarified vide Circular No. 6/2010-Cus., dated 19-3-2010 that rebate under Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p;It is an established fact that the concept of unjust enrichment is not applicable in the matters of exports, as stands specified in the first proviso to sub-section (2) of Section 11(b) of Central Excise Act, 1944. Government therefore finds that the said ground as stated in para 4.1 above is legal and proper and same is acceptable. 9. Further, Government notes that there are some differences in the stated factual details such as non-availabilities of relevant required documents and also details contained in submitted documents such as :- 9.1 Para 4.5 of the order-in-appeal says that invoices were raised in the name of contractors only but the applicant states that the goods were supplied to 4 developers I co-developers and in addition also supplied to 3 of the authorized contractors who have stated that they have not claimed any Cenvat credit for the impugned supplies and they have no objection for the impugned claims by the applicant herein, applicant has also produced the photocopies of such invoices, ARE-1s and Bill of Exports which on perusal supports the contention of the applicant. This is a matter of verification as per original copies/records which can very w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEZ officers/authorities under "Development" Commissioner (SEZ) in terms of Rules 12(b) and 27 of SEZ Rules, 2006. 10. Here, Government stresses that interpretation of relevant statutory provisions and also the conclusion drawn should be in the light of Hon'ble Supreme Court's observations in cases of M/s. ITC Ltd. v. CCE - 2004 (171) E.L.T. 433 (S.C.); Paper Products Ltd. v. CC [1999 (112) E.L.T. 765 (S.C.)] and CCE, Vadodara v. Dhiren Chemicals Ind. Ltd. [2002 (143) E.L.T. 19 (S.C.)] wherein it was held that the simple and plain reading of statutory/provisions are to be strictly adhered to. 11. It is noted that the excisable goods manufactured by the registered factory and cleared on payment of Central Excise Duty as per the invoices/ARE-1s/Bill of Export which clearly indicates the consignee's place as an SEZ. The goods are received in full in SEZ as per certification of Customs Officers recorded on the relevant ARE-1s/Shipping Bills/Bill of Exports. The receipt of said goods in SEZ is not disputed in these cases. There are catena of judgments that substantial benefit of rebate should not be denied for procedural lapses. Since the verification of requisite documents ..... X X X X Extracts X X X X X X X X Extracts X X X X
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