9911796707
TMI Blog2023 (9) TMI 1270X X X X Extracts X X X X X X X X Extracts X X X X ..... MR. SOMESH ARORA, MEMBER (JUDICIAL) AND MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Anoop Kumar Mudvel, Superintendent (AR) s for the Appellant-Revenue Shri JC Patel and Ms. Shilpa Balani, Advocate for the Respondent-assessee ORDER Brief facts of the matter are that the respondent-assessee namely M/s. Reliance Industries Limited having Special Economic Zone (SEZ) in Jamnagar was receiving iron and steel materials/ products from Domestic Tariff Area (DTA) unit. The Government of India vide Notification No. 66/2008 dated 10.05.2008 has imposed export duty on iron and steel products when exported out of India. It is worth mentioning here that Section 2(m) of SEZ Act, 2005 clearly stipulates that supply of goods from DTA unit to SEZ unit will amount to export. Thus, the respondent-assessee SEZ paid export duty on all supplies of iron and steel products as per the rates prescribed in the Notification No. 66/2008 dated 10.05.2008 under protest . 2. On the issue of payment of export duty on the iron and steel products supplied to SEZ in India, the Notification No. 66/2008 dated 10.05.2008 was challenged vide a civil application before Hon ble Gujarat High Court. The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 004-20-21 dated 29.05.2020 rejected the department s appeal. The impugned grounds of department for reviewing order-in-appeal dated 19.05.2020 and filing these appeals is as under:- During the course of review of the subject impugned OIA, it has been observed that the refund in the subject case has arisen on account of the Order dated 04.11.2009 passed by the Hon'ble High Court of Gujarat in case of Essar Steel Ltd. v/s UOI. The Department had challenged the said Order dated 04.11.2009 before the Hon'ble Supreme Court vide SLP No.19498/2010 which was dismissed vide Supreme Court Order dated 12.07.2010 reported at [2010(255)ELT-A-115(SC)]. Since, there was an apparent mistake in the Order dated-12.07.2010, the Department filed a Review Petition no.1848 of 2010 in the case against the Apex court decision dated 12.07.2010. The ground on which the said Review Petition was filed is as follows: (a) Aggrieved by the judgment of High Court, Gujarat dated 04.11.2009, a Special Leave Petition No. 5698/2010 was filed before the Hon'ble Supreme Court bench along with the office report dated 09.07.2010. The Hon'ble Supreme Court vide its order dated 12.07.2010 has dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP No.19498/2010 filed by the department has been restored and pending for final decision. 5. Learned Consultant appearing on behalf of the respondent-assessee has argued that in the orders-in-original dated 26.09.2017, the Adjudicating Authority, Dy. Commissioner had categorically held that no export duty was payable and that such duty is liable to be rejected and this finding of the jurisdictional Dy. Commissioner has never been challenged by the department and attained finality. It has further been mentioned that the Hon ble Supreme Court might have restored the ordinal SLP No. 19498/2010 vide its order dated 10.02.2020 however, the Hon ble Apex Court has not stayed the Hon ble Gujarat High Court order dated 12.07.2010. 6. Having heard both the sides we are of the opinion that before proceeding further it will be relevant to have a look at the impugned order-in-appeal whereunder the Commissioner (Appeals) has rejected the department s appeal against the order of jurisdictional Dy. Commissioner:- 5 . I have carefully gone through the appeal memorandum as well as records of the case, submissions made by the appellant as well as the documents and evidences available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EL.T. 607 (S.C.) settling law relating to conditional rate of CVD on imported goods - Commissioner (Appeals) in his order not following impugted judgment on ground that Revenue's review petition against same still pending before Apex Court for a final decision - Said order of appellate authority, totally misconceived-Mere fuct of filing review petition, not a ground for not following a binding precedent. In the case of Aditya International Ltd. 2016(332 )ELT 95(Cal), the Hon'ble High Court Calcutta has held that Precedent - Binding precedent - Exemption from CVD Condition of non-availment of Cenvat credit-Mere filing of review petition by Revenue does not make said Judgment as non-binding - Said judgment having reached finality is binding until recalled and modified or varied in review - Revenue directed to assess the Bill of Entry either on basis of aforesaid judgment or give a decision with cogent reasons by distinguishing same - Article 226) of Constitution of India. The appellant department in their appeal has contended that as the matter at this juncture is under litigation at the level of Apex court and sub-judice, therefore issuance of refund sanction order in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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