2017 (9) TMI 1542 - AT - Central Excise

Appellate Tribunal rules in favor of respondent, clarifies SEZ Act treatment

Commissioner of Central Excise, Customs and Service Tax, Guntur Versus M/s P.M.G. Structurals (P) Ltd.

The Appellate Tribunal upheld the impugned order, ruling in favor of the respondent and rejecting the appeal filed by the Revenue. The judgment clarified ... Clearances made to SEZ Unit developer - demand of duty - SCN was issued alleging that respondent being not a contractor of SEZ unit hence, not eligible for exemption from central excise duty, clearances cannot be treated as exports and the fact that he was not a contractor was suppressed from the Department - Held that: - the clearances made by the respondent to an SEZ unit are exports as per the provisions of the SEZ Act 2005 - Circular of CBEC dated 27.12.2006 relied upon, wherein it was clarified that all clearances made to SEZ developer and SEZ co-developers are deemed to have been treated as exports as per Section 2(m) of the SEZ Act 2005. As regards the claim of the Revenue that respondent has not followed the procedure of ARE-1, it was held that non-preparation of ARE 1 is a condonable procedure lapse, if it is confirmed that goods are exported - There is no dispute as to the fact that the respondent had shown the clearances made to SEZ unit as clearances without payment of duty in the monthly returns. Appeal dismissed - decided against Revenue. Issues involved:Demand of duty on clearances made to SEZ Unit developer, interpretation of SEZ Act 2005, applicability of Central Excise Rules 2002, treatment of clearances to SEZ units as exports, compliance with ARE-I procedure.Analysis:1. Demand of duty on clearances to SEZ Unit developer:The case involved a manufacturer supplying prefabricated structurals to an SEZ unit without discharging any duty, leading to a demand of duty by the Revenue. The adjudicating authority confirmed the demand along with interest and penalty, which was set aside by the 1st Appellate Authority on appeal. The main contention was whether the clearances made to the SEZ unit should be treated as exports and hence exempt from central excise duty.2. Interpretation of SEZ Act 2005:The Appellate Tribunal considered the provisions of the SEZ Act 2005 in determining the nature of clearances made to SEZ units. It was argued that all clearances to SEZ developers and co-developers are deemed as exports under Section 2(m) of the SEZ Act. The Tribunal relied on past decisions, such as the case of Sujana Metal Products Ltd. Vs CCE Hyderabad and upheld by the High Court of A.P., to support the view that clearances to SEZ developers are to be treated as exports.3. Applicability of Central Excise Rules 2002:The issue of whether clearances made from the Domestic Tariff Area (DTA) to SEZ units should be considered as exports under the Central Excise law was discussed. The argument centered around the exemption provided under Rule 19 of the Central Excise Rules 2002 for clearances to SEZ units and the distinction between exports and exempt clearances.4. Treatment of clearances to SEZ units as exports:The Appellate Tribunal analyzed the definition of 'export' in relation to supplies made to SEZ units and emphasized that the provisions of the SEZ Act should prevail in case of any conflict with other statutory provisions. The Tribunal referred to Circulars issued by the Central Board of Excise and Customs (CBEC) to support the view that clearances to SEZ developers are to be treated as exports.5. Compliance with ARE-I procedure:The issue of non-preparation of ARE-I for the clearances made to the SEZ unit was raised. The Tribunal considered past decisions, such as the case of Brahmos Aero Space Pvt Ltd, where it was held that the non-preparation of ARE-I could be condoned as a procedural lapse if it is confirmed that the goods were exported. The Tribunal found that the respondent had shown the clearances in the monthly returns without payment of duty, supporting the conclusion that the impugned order was correct and legal.In conclusion, the Appellate Tribunal upheld the impugned order, ruling in favor of the respondent and rejecting the appeal filed by the Revenue. The judgment clarified the treatment of clearances to SEZ units as exports under the SEZ Act 2005 and highlighted the importance of compliance with procedural requirements for such transactions.