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TMI Blog2017 (6) TMI 1066X X X X Extracts X X X X X X X X Extracts X X X X ..... i Prasad Paranjape, Ld. Counsel appearing on behalf of the appellant submits that supplies made to SEZ developer has been held as 'export' which does not attract payment as provided under Rule 6(3) (b) of Cenvat Credit Rules, 2004 in various following decisions: (i) Sujana Metal Products Ltd. Vs. Commissioner of C. Ex., Hyderabad 2011 (273) E.L.T. 112 (Tri.-Bang.) This decision was upheld by Hon'ble Andhra Pradesh High Court reported as Commissioner Vs. Sujana Metal Products Ltd. 2016 (342) E.L.T. A115 (A.P.) (ii) Commissioner of C. Ex., Bangalore -III Vs. Lotus Power Gears (P) Ltd. 2017 (346) E.L.T. 347 (Kar) (iii) Commissioner of C. Ex. Vs. Dee Development Engineers Pvt. Ltd. 2016 (339) E.L.T. 560 (P & H). 3. On the other hand, Shri N. N. Prabhudesai, Ld. Superintendent (A. R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both the sides and on perusal of record, I find that the issue to be decided is whether supplies made to SEZ developer is export and consequently whether the appellant is liable to pay 10% value of the goods supplied to SEZ develo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Explanation II - If the manufacturer fails to pay the said amount, it shall be recovered along with interest in the same manner, as provided in rule 12, for recovery of CENVAT credit wrongly taken. (4) No CENVAT credit shall be allowed on capital goods which are used exclusively in the manufacture of exempted goods, other than the final products which are exempt from the whole of the duty of excise leviable thereon under any notification where exemption is granted based upon the value or quantity of clearances made In a financial year. (5) The provisions of sub-rule (1), sub-rule (2), sub-rule (3) and sub-rule (4) shall not be applicable in case the exempted goods are either - 1. cleared to a unit in a free trade zone; or 2. cleared to a unit in a special economic zone; or 3. cleared to a hundred per cent export-oriented undertaking; or 4. cleared to a unit in an Electronic Hardware Technology Park or Software Technology Park; or 5 ..................... 6. &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall exercise such option for all exempted goods manufactured by him or, as the case may be, all exempted services provided by him, and such option shall not be withdrawn during the remaining part of the financial year. Explanation II - For removal of doubt, it is hereby clarified that the credit shall not be allowed on inputs and input services used exclusively for the manufacture of exempted goods or provision of exempted service. (3A) ....................... (4) No CENVAT credit shall be allowed on capital goods which are used exclusively in the manufacture of exempted goods or in providing exempted services, other than the final products which are exempt from the whole of the duty of excise leviable thereon under any notification where exemption is granted based upon the value or quantity of clearances made in a financial year. (5) ....................... (6) The provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty are either - [(i) cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a unit in SEZ or to a developer of SEZ for their authorized operations." 9.4 According to the Department the amendment effective from 31-12-2008 Rule 6 of Cenvat Credit Rules, 2004 is enlarging the scope of exception to the supplies made to a developer of SEZ for their authorized operation and the same is only prospective in nature and the same cannot be applied retrospectively. Relying on the decision of the Tribunal in the case of Gujarat Sidhee Cement Ltd. v. CCE, Rajkot [2007 (216) E.L.T. 55 (Tri. Ahmd.)] and the decision of the Hon'ble High Court in the case of Vasu Knitwear v. CCE, Ludhiana reported in 2010 (254) E.L.T. 214 (P & H), it was submitted that while interpreting statutes plain language was to be given effect and in the absence of specific provisions for retrospective effect the notification should be read only as in prospective in nature. It was also submitted that the clarification of the Board in F.No. 267/52/2008-CX., dated 7-1-2009 was to the effect that the amendment dt. 31-12-2008 was applicable only from the date of notification. On the other hand, on behalf of the assessees, it was submitted that it was the consistent policy of the Central Govt. to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the known and well-recognized practices employed in legislative drafting and 'Substitution' has to be distinguished from 'supersession' or a mere repeal of an existing provision. It has been further held that the process of substitution consists two steps : 1 the old rule is made to cease to exists and, 2 the new rule is brought into existence in its place. 11. In the present case, taking into account the provisions of the erstwhile SEZ in Chapter XA of the Customs Act, the provisions in the SEZ Act and the clarifications of the Board (except the clarification dated 7-1-2009), it is apparent that the intention was to make available the benefits to SEZ developer for the authorized operations in addition to SEZ units and therefore the amendment No. 50/2008-C.E. (N.T.), dated 31-12-2008 Cenvat Credit Rules, 2004 is applicable retrospectively. However, as the amendment by No. 50/2008 is only to Rule 6 of Cenvat Credit Rules, 2004, the question of extending the benefit of amendment to Cenvat Credit Rules, 2002 does not arise. 12. As the issues involved relate to interpretations of SEZ provisions under the Customs Act, SEZ Act and provisions of the Central Excise Rules and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as sought to be canvassed." (iii) Dee Development Engineers Pvt. Ltd. (supra) held that - "2. At the very outset, it was not disputed by learned counsel for the parties that identical issue was gone into by three different High Courts in "Commissioner of Central Excise & Customs, Raipur v. M/s. Steel Authority of India Ltd., Bhilai Steel Plant, Bhilai, 2013-TIOL-384-HC-Chhattisgarh-CX = 2013 (297) E.L.T. 166 by Chhattisgarh High Court, which was followed by Andhra Pradesh High Court in CEA No. 40 of 2012, the Commissioner of Customs & Central Excise, Hyderabad v. M/s. Sujana Metal Products Ltd., decided on 2-7-2013 and further followed by Karnataka High Court in Commr. of C. Ex. & S.T., Bangalore v. Fosroc Chemicals (India) Pvt. Ltd. - 2015 (318) E.L.T. 240 (Kar.), and the issue was decided against the revenue and in favour of the assessees. 3. As the issue raised in the present appeal has already been gone into by three different High Courts and the opinion expressed is against the revenue, for the reasons assigned in those judgments, we deem it appropriate to follow the same to maintain consistency as the Central Excise Act is a Central Statute. Accordingly no subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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