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TMI Blog2016 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Secretary (RA) passed Orders-in-appeals against orders-in-appeal in matters relating to rebate on supplies from DTA to SEZ. Reading proviso (b) to section 35B to mean that it includes cases relating to goods supplied from DTA to SEZ is only an inevitable corollary to holding that such supplies may be treated as export. While doing so the legal fiction is not being extended beyond the purpose for which it was created. We hold so because there does not appear to be any intent to treat such deemed exports differently for the purpose of proviso (b) to section 35(1) (sic) of the Act. - in respect of rebate on goods supplied from DTA to SEZ within India, the appeals would not lie to the Appellate Tribunal under clause (b) of proviso to Section 35(1) of the Central Excise Act. - Appeal No. E/89802/2013, E/89952 to 89954/2013 & E/89963 to 89966/2014 - Misc. Order Nos. M/5369-5376/2015-WZB/LB - Dated:- 17-12-2015 - M. V. Ravindran, Member (J) , P. S. Pruthi, Member (T) And Ramesh Nair, Member (J) For the Appellant : Shri J C Patel, Shri D H Nadkarni, Advs For the Respondent : Shri Hitesh Shah, Commissioner (AR) ORDER Per P S Pruthi This Larger Bench has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Supreme Court in Special Civil Application no. 9656/2008 reported in 2010(249)ELT 3 (Guj.) A115(SC). 5.1 The next contention is that Section 26 of the SEZ Act 2005 provides for exemptions, drawback and concessions to Developers and Entrepreneurs. Specifically, it provides for exemption from Customs duty on goods exported from a SEZ to any place outside India. Similarly, it provides exemption from duty of excise on goods brought from Domestic Tariff Area (DTA) to a SEZ. In short, Section 26 clearly recognizes the separate aspects of export to any place outside India and goods brought from Domestic Tariff Area to a SEZ. Thus, it recognizes the aspect of physical export to any place outside India but does not speak of the goods brought from DTA to SEZ as 'export'. Further, the procedure for procurement of goods from DTA to SEZ is laid in Rule 30 of SEZ Rules, 2006 wherein the supply of goods is to be done as in the case of exports . The Ld. Counsel stated that the supply itself is not considered as export, only the procedure to be followed shall be as in the case of exports. In this context, he also referred to referred Board Circular no. 6/2010-Cus dt. 19.3.2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... careful consideration to the submissions made by both sides. The issue involved is very clear and needs no repetition. We note the divergent judgments on the issue at hand. In the case of Hindustan Petroleum Corpn. Ltd. vs. Commissioner of C.Ex, Mumbai 2013(294)ELT 509(Tri-Mumbai) the Tribunal held that appeal against orders on refund in respect of goods supplied to SEZ are not maintainable under proviso (c) to section 35(1) of the Central Excise Act. In the case of Tata Consultancy Services Ltd. vs. Commr. of C.Ex. S.T (LTU), Mumbai 2013 (29)STR 393 (Tri-Mumbai) an appeal regarding refund in respect of services supplied to SEZ was entertained by the Tribunal. Also in Commissioner vs. Shree PLA Pvt. Ltd. 2013(296)ELT 282 (Tri-Bang) Tribunal decided on appeal relating to 'exports' from DTA to SEZ. In Rohit Poly Product Pvt. Ltd. 2012 (284)ELT 137 (GOI) and in Indo Amines Ltd. 2012(284)ELT 147 the Joint Secretary (RA) passed Orders-in-appeals against orders-in-appeal in matters relating to rebate on supplies from DTA to SEZ. 7.1 The Ld. Counsel for the appellant referring to the legal provisions such as Section 26 of the SEZ Act and Rule 30 of the SEZ Rules emphasized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... historical fact that the SEZ Act 2005 came into existence much later than the Central Excise Act. In this context it could hardly have been the intention of Government to segregate rebate matters into two categories for appeal purposes - one category in respect of exports to a place outside India and another category in respect of so called deemed exports from DTA to SEZ. It appears that a suitable amendment to the proviso to section 35B was overlooked in 2005 to bring supplies to SEZ under its ambit. Nevertheless, the question arises whether the said legal provision can be ignored to reach a conclusion that the second category of cases will also get covered under the proviso to Section 35B. In our view an interpretation holding such inclusion as valid will not lead to ousting of jurisdiction without reason. It will not lead to an impermissible illegality; it will only rationalize and streamline the procedural law as it was intended to be. It will not render anything redundant or unworkable. The conclusion that, even supplies to a SEZ will get covered by the proviso to section 35B will only result in an ancillary or natural consequence of reading the words deemed export into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons creating legal fictions is well settled. In interpreting a provision creating legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. In consonance with the above judgment we find that reading proviso (b) to section 35B to mean that it includes cases relating to goods supplied from DTA to SEZ is only an inevitable corollary to holding that such supplies may be treated as export. While doing so the legal fiction is not being extended beyond the purpose for which it was created. We hold so because there does not appear to be any intent to treat such deemed exports differently for the purpose of proviso (b) to section 35(1) (sic) of the Act. 8. A striking contention of the ld. AR which appeals to us is that the only statutory provision for grant of rebate lies in Section 11B read with Rule 18 of Central Excise Rules which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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