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TMI Blog2023 (7) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2014-DB CROSS Application No.:-E/CROSS/15036/2014 - FINAL ORDER NO.11553/2023 - Dated:- 21-7-2023 - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Ajay Kumar Samota, Superintendent (AR) for the Appellant-Revenue Shri Ishan Bhatt, Advocate for the Respondent-Assessee ORDER Brief facts of the case are that M/s. Ultratech Cement Limited is engaged in the manufacture and sale of cement at their factories located in Kovaya (Gujarat Cement Works) and Jafrabad (Narmada Cement Works). The appellant have cleared cement from above factories to developers of Special Economic Zone (SEZ) during April 2007 to December 2008. The said clearances of cement to Special Economic Zone developers were made without payment of excise duty under bond/LUT in accordance with the provisions of Section 26(1)(c) of the Special Economic Zone Act, 2005 read with Rule 30 of the Special Economic Zone Rules, 2006 and Rule 19 of Central Excise Rules, 2002. The case of the department is that during the relevant period the provisions of Rule 6 (3) of Cenvat Credit Rules, 2004 was applicable in respect of supplies made to SEZ. Accordingly the respondent is liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and held that Notification No. 50/2008-CE (NT) dated 31.12.2008 shall operate with retrospective effect. As a result the supplies made to SEZ developers shall also be eligible for Rule 6(6)(i) of Cenvat Credit Rules, 2004 even for the period prior to 31.12.2008. 4. We have carefully considered the submissions made by both the sides and perused the record. We find that limited issue to be decided in the present case is that whether the amendment made in Rule 6(6)(i) of Cenvat Credit Rules, 2004 vide Notification No. 50/2008-CE(NT) dated 31.12.2008 can be applied retrospectively and consequently the demand of an amount equal to 10% value of cement supplied to SEZ developers is liable or otherwise. For the ease of reference the amendment in Rule 6(6)(i) of Cenvat Credit Rules, 2004 is reproduced as under:- Cenvat Credit Rules, 2004 Third amendment of 2008 In exercise of the powers conferred by section 37 of the Central Excise Act, 1944 (1 of 1944) and section 94 of the Finance Act, 1994 (32 of 1994), the Central Government hereby makes the following rules further to amend the CENVAT Credit Rules, 2004, namely :- 1. (1) These rules may be called the CENVAT Credit (T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal. The order is reproduced below: The issue involved in the present case is that whether demand under Rule 6(3)(b) of Cenvat Credit Rules, 2004 is maintainable in respect of goods supplied to SEZ Developers during the period 2005-08. 2. Shri Narendra Pati, Learned C.A. appearing on behalf of the appellant submits that this issue has been settled by various judgments of this Tribunal according to which the demand of Cenvat credit under Rule 6 is not sustainable, even prior to 31-12-2008 when the Rule 6 was amended vide Notification No. 50/2008-C.E. (N.T). He placed reliance on the judgment of the Hon ble Karnataka High Court in the case of Commissioner of Central Excise, Bangalore-III v. Lotus Power Gears (P) Ltd. - 2017 (346) E.L.T. 347 (Kar.). 3. Shri A.B. Kulgod, Learned Asstt. Commissioner (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order. 4. On careful consideration of the submissions made by both sides and perusal of the records, we find that the issue is no longer res integra as the same is settled in various judgments including the judgment cited by the Learned Counsel in the case of Lotus Power Gears (P) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered from it under sub-rule 6(3)(b) of the 2004 Rules and same was upheld on the ground that at the relevant time the clearances of the goods to the developers of SEZ was not covered by sub-rule 6(6)(i), the substituted sub-rule 6(6)(i) was prospective and the assessee cannot take benefit of the same. The Hon ble High Court examined the difference between the tax and duty, nature of excise and customs duties. The following paragraphs of the judgment are worth taking note of :- 32. The Government of India introduced a policy on 1-4-2000 for setting up of the Special Economic Zones (SEZ), with a view to provide an internationally competitive and hassle free environment for exports. The units could be set up in the SEZ for manufacture of goods and rendering services. They were to be net foreign exchange earner and were not to be subjected to any pre-determined value addition or minimum export performance requirements. 33. Initially, in order to implement the aforesaid policy, the Customs Act was amended and Chapter XA with Sections 76A to 76H was inserted. Subsequently, the SEZ Act was enacted and Chapter XA of the Customs Act was deleted. 34. Section 2 of the SEZ Act is tit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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