TaxTMI 
TaxTMI 
TaxTMI 
2015 (1) TMI 527
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....ioners in addition to the clearance of their finished excisable goods on payment of Central Excise Duty at appropriate rate for home consumption, the petitioners are also engaged in exporting their finished excisable goods to foreign countries or SEZ units, either without payment of Central Excuse Duty under Rule 19 of the Central Excise Rules, 2002 [hereinafter referred to as "the Rules"] or under UT1 or on payment of Central Excise Duty under a claim of Rebate under Rule 18 of the Rules. That according to the petitioners, the petitioners supplied the final products to the buyers who are situated in Kandla Special Economic Zone after payment of Central Excise Duties. That according to the petitioners, since the goods were supplied to Kandla Special Economic Zone, it is to be considered as export of goods under the scheme of the Special Economic Zones Act, 2005 [hereinafter referred to as "SEZ Act"], which also gives deemed benefit to local/DTA industries who supplies goods or to provide services in the SEZ demarcated area as if it is exported out of India and get all the benefits which are otherwise available to a normal exporter who exports its goods or to provide services to a u....
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.... grant of rebate to unit availing are based exemption notification, the said condition does not say anything about the availment or nonavailment of benefit of Notification No.39/2001CE on the exported goods. That while passing the revisional order, the Revisional Authority has also observed that petitioner has admitted himself that they are availing benefit of said area based exemption notification at the same time they claimed rebate on the ground that benefit of notification No.39/2001CE has not been availed on exported goods manufactured by plant and machinery after 31.12.2005. The Revisional Authority therefore observed that since the language of condition No.2(h) is quite clear and it puts embargo on ground of rebate in case of export of goods manufactured by manufacturers availing benefit of Notification No.39/2001CE and consequently the learned Revisional Authority has quashed and set aside the order in original as well as the order in appeal, rejecting the rebate claims of the petitioners. [2.6] Feeling aggrieved and dissatisfied with the impugned order passed by the learned Revisional Authority - respondent No.2 herein, petitioners have preferred the present special civil....
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....toff date and after the cutoff date. It is submitted that in that situation, there cannot be any doubt or any confusion with regard to the availability of the Notification No.19/2004CE. [3.4] It is further submitted by Shri Shah, learned advocate appearing on behalf of the petitioners that the Revisional Authority has even erred in brushing side the Circular No. No.110/21/2006CX. 3 dated 10.07.2008, whereby it has been clarified that in the case of introduction of new product but installing fresh plant and machinery or capital goods after the cutoff date the said new produce would be cleared on payment of duty and separate account records were required to be maintained to distinguish production of this product from the products which are eligible for the exemption. It is submitted that in the present case admittedly the petitioner maintained separate accounts of capital goods and raw materials after cutoff date i.e. 31.12.2005 and before cutoff date. It is submitted that therefore now denying the rebate only on the ground that Notification No.19/2004CE got amended by Notification No.37/2007CE (NT) is nothing but depriving the petitioner in claiming their substantial benefit of reb....
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....hall be subject to the conditions mentioned in clause 3 of the said exemption notification more particularly, it shall apply only to new industrial units i.e. to say units which are set up on or after the date of publication of the said notification in the official gazette but not later than 31st day of December 2005 and that the exemption shall apply for a period not exceeding 5 years from the date of commencement of commercial production by the unit. Therefore, for availing the exemption benefit under Notification No.39/2001, the industrial unit ought to have been set up on or before the cutoff date i.e. 31.12.2005 and the exemption shall be applied for a period not exceeding 5 years from the date of commencement of commercial production by such unit. [5.1] As per the notification issued under Rule 18 of the Rules, which provides for rebate of duty on export of goods to all the countries other than Nepal and Bhutan, rebate is not allowable in case of export of goods which are manufactured by a manufacturer availing the notifications mentioned in clause 2(h) of the said notifications inclusive of Notification No.39/2001CE dated 31.07.2001. In the present case, the petitioners wer....
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....alled after 31.12.2005, relying upon clause 2(h) of the notification under Rule 18 of the Rules. [5.2] Now, so far as the reliance placed upon the Circular No.110/21/2006CX. 3 dated 10.07.2008 by the petitioners is concerned, it is absolutely misplaced. Under the aforesaid clarificatory circular, it is mentioned that in case a unit introduces the new product manufactured from raw material by installing fresh plant and machinery after the cutoff date i.e. 31.12.2005, in such a situation, exemption would not be available to the said new product and the said new product would be cleared on payment of duty as applicable and separate records will be required to be maintained to distinguish production of these products from the products which are eligible for exemption. It also further clarifies that where a unit starts producing some products [after the cutoff date] using the plant and machinery installed upto cutoff date and without any addition to the plant and machinery, in that case, the unit would be eligible for the benefit of exemption notification because the plant and machinery used for manufacturing has remained the same. In the present case, admittedly, there is no new produ....