TaxTMI 
TaxTMI 
2014 (8) TMI 655
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....ril 2008 to December 2008 70,41,755 7,04,000 E/806/11 YDB/93/RGD/2011 dated 31/01/2011 24.07.2008 to 30.12.2008 10,97,095 10,97,095 E/87012/13 PVR/81-82/NGP/2013 dated 13.2.2013 April 2009 to June 2009 13,70,450 13,70,450 E/87011/13 PVR/81-82/NGP/2013 dated 13.2.2013 January 2009 to March 2009 23,72,642 23,72,642 E/1646/10 PIII/VM/134/10 dated 16.06.2010 October 2006 to December 2008 30,97,251 30,97,251 E/85320/10 12/2013/C dated 30/10/2013 October 2011 to August 2012 51,47,975 51,47,975 2. The brief facts of the case as per appeal No. E/87011/13 are as follows:- The facts in brief are that the appellants is engaged in the manufacture of Cement/Clinker and are also availing the Cenvat facility in respect of duty/tax paid on inputs/Capital Goods and Service Tax under Rule 3 of CENVAT credit Rules, 2004. During the period from January, 2009 to March, 2009 and from April, 2009 to June, 2009, the appellant under the cover of ARE-1s cleared Cement without payment of duty to the firms/contractors who were neither SEZ units nor Developers in terms of Rule 6(6) of CENVAT credit Rule, 2004, but were contractors of the developers of the SEZ. From the CENV....
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....mandable. The Rule 6(6)(i) was amended from 31.12.2008 wherein the developer was also included along with units of SEZ and hence no demand survives after that date and even for the clearances made prior to that date, as this amendment is clarificatory in nature and hence retrospective in nature. Cement supplied by them are not exempted goods as per definition 2(d) of Cenvat Credit Rules, 2004 and hence, there is no requirement of paying any duty for the clearances effected to SEZ, being exports. SEZ Rules have overriding effect over the Central Excise Act. He also cited Circular No. 20/2006-Cus dated 27.12.2006 wherein it was clarified that supplies from DTA to SEZ unit or developers may be treated as 'Exports'. After issue of this Circular, the Notification NO. 58/2003-CE date 22.7.2003 is redundant and consequently, the DTA supplies are governed by the provisions of SEZ Act & rules. Hence goods being in the nature of export goods, Rule 6 of Cenvat Credit Rules, 2004. He has also relied upon the case law of Sujana Metal Products decided by this Tribunal. He has also relied upon the decision of the Hon'ble Bombay High Court in the case of Repro India Ltd. Vs. UOI - 20....
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.... number beginning from the first day of the financial year. (d) Further, Rule 30(2) provides that the goods procured by a Unit or Developer on which central excise duty exemption has been availed but without any availament of export entitlements, shall be allowed admission into SEZ on the basis of ARE-1. (e) Sub-rule (10) of Rule 30 provides that where the goods are to be procured by a unit of developer from a DTA supplier who is not registered with the Central Excise authorities, or is a trader or merchant exporter, the procedure under sub-rule (1) and (2) above shall apply, mutatis mutandis, excepts that the goods shall be brought to the SEZ under the cover of an invoice and the ARE-1 shall not be required. (f) In other words, Rule 30(10) provides that where the supplier of goods who is located in the DTA is a person not registered with the Central Excise authorities or is a trader, the procedure laid down in sub-sections (1) and (2) of Section 30 are to be followed mutatis mutandis - as may be applicable to him. (g) From a reading of the aforesaid provisions, it is clear that the contractors of SEZ u....
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....nd supplied by them to the developers of SEZ. However, it neither maintained separate account as required under sub-rule 6(2) nor it had paid 10% of the value of the exempted goods under sub-rule 6(3)(2) of the Cenvat Credit Rules, 2004. The Revenue issued show-cause notice as to why 10% of the total value of the exempted goods be not recovered 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 01.04.2000 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....