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TMI Blog2016 (3) TMI 894X X X X Extracts X X X X X X X X Extracts X X X X ..... A/85084/16/SMB - Dated:- 30-11-2015 - Ramesh Nair, Member (J) For the Appellant : Shri R K Maji, Asstt. Commissioner (AR) For the Respondent : Shri Anupam Dighe, Adv ORDER Per Ramesh Nair This Revenue's appeal is directed against Order-in-Appeal No. PII/AV/107/2010 dated 26/7/2010 passed by the Commissioner (Appeals-II) Central Excise, Pune, wherein the Ld. Commissioner (Appeals) allowed the appeal of the Respondent 2. The issue involved in the present case is whether the supply to SEZ developer for their authorized office can be treated as export and secondly whether demand of 10% of the value of the goods in terms of Rule 6(3)(i) is correct and legal or otherwise. 3. Shri. R.K. Maji, Ld. Asst. Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not under dispute that the respondent have supplied the goods to the SEZ developers. Now on the issue is whether such supplies should be treated as export even prior to the amendment notification No. 50/2008, I find that Ld. Commissioner (Appeals) has given categorical findings relying on various Board Circulars and interpreting the relevant statutory provisions. Findings of the Ld. Commissioner (Appeals) in the impugned order is reproduced below: 5. I have carefully gone through the records of the case as well as the grounds of appeal and the submissions made during the personal hearing. There has been a delay of 1 day for filing the appeal. The appellants have filed the applications for condonation of delay on the grounds that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which are chargeable to 'nil' rate of duty. (ii) The Order-in-Original does not bring out the details of notification wherein the pumps and parts thereof have been exempted from payment of duty in terms of Central Excise Act, 1944. It has therefore to be concluded that the pumps manufactured by the appellants are dutiable goods. (iii) Rule 6(6) of Cenvat Credit Rules, 2004 refers to sub-rules (1),(2), (3) (4) and states that in all cases listed at sr. no. (i) to (vii) where excisable goods are removed without payment of duty cenvat credit would nevertheless be permissible. Out of these seven there are two categories which are relevant to this case. Rule 6(6)(i) refers to goods cleared to a unit in SEZ and Rule 6(6)(v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Further para 5 of the Circular states as under: 5. The existing SEZs, i.e., the ones notified under section 76A of Chapter X A of the Customs Act, 1962 shall be deemed to have been notified under Section 4 of the Act. Supplies from DTA to SEZ shall be exempt from payment of any Central Excise duty under Rule 19 of Central Excise Rules, 2002. Similarly, such supplies shall be eligible for claim of rebate under Rule 18 of Central Excise Rules, 2002 subject to the fulfillment of conditions laid there under. The provisions relating to exports under Central Excise Act, 1944 and rules made there under may be applied, mutatis-mutandis, in case of procurement by SEZ units SEZ developer from DTA for their authorized operations. (vi) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the impugned order. Moreover, as of now as per the Hon'ble Karnataka High Court judgment in case of Fosroc Chemicals(India) Pvt. Ltd. (supra), the issue is settled that even prior to amendment Notification No. 50/2008-CE(N.T.) the supplies made to SEZ Developer has been treated as export and accordingly manufacturer/supplier need not to pay 10% in terms of Rule 6(3)(i) of CCR,2004. As regard the Revenue's appeal pending before the Hon'ble High Court of Bombay in case of Seimens Ltd. (supra), since there is no stay, the submission of the ld. A.R. cannot be accepted to keep the matter in abeyance, particularly when issue is covered by Hon'ble Karnataka High Court judgment in case of Fosroc Chemicals(India) Pvt. Ltd.(supr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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