TaxTMI 
TaxTMI 
2016 (1) TMI 17
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....outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;" 2. The background is that in some judgments the Tribunal entertained such appeals whereas in other cases the Tribunal viewed that it does not have jurisdiction. The Joint Secretary, Revision Application (RA) has also entertained appeals in identical cases. Therefore, the need has arisen for a decision in the matter by the Larger Bench. 3. We find that as per the language of the legal provision, that is proviso to section 35B(1) of the Act, the Appellate Tribunal shall not have jurisdiction to decide an appeal against an order relating to rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country outside India. Essentially what needs to be decided by us is whether the phrase "exported to any country or territory outside India" is to be understood mean physical export outside India or whether it can also mean supply of goods made to a SEZ in India which, under various provisions, acquires status of deemed export. 4. Heard bo....
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....R took us through the statutory provisions under which rebate is sanctioned. He drew attention to proviso to Section 11B under which rebate is paid on excisable goods exported out of India. The rebate is granted under Rule 18 of Central Excise Rules 2002 subject to conditions/limitations/procedure prescribed on goods which are exported to a place outside India. The term export includes shipment of goods as provision or stores for use on board a ship. Essentially, the argument is that the Central Excise Act/Rules is the only statutory provision for grant of rebate on exports. Therefore, if supplies made to a SEZ is not considered as export, then the question of sanction of rebate does not arise. In Board Circular no. 29/2006 dt. 27.12.2006 the important provisions of SEZ Act are listed. One of the provisions is section 2(m) which states that supplying goods from DTA to a SEZ has been defined to constitute export. Another provision, section 53 of the SEZ Act, states that a Special Economic Zone shall be deemed to be territory outside the Customs territory of India. Further, under the same Circular it is laid down that the procurement of goods from DTA to SEZ shall be on the basis of ....
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....cited by him. 7.2 In the case of Essar Steel Ltd. (supra) the issue was whether export duty can be imposed under the Customs Act, 1962 by incorporating the definition of the term "export" under the SEZ Act into the Customs Act. The facts in this case were that export duty was sought to be levied under the Customs Act on goods supplied from DTA to the SEZ. The Hon'ble Court observed that a definition given under an Act cannot be substituted by the definition of the same term given in another enactment, more so, when the provisions of the first Act are being invoked. The Court went on to observe that even in the absence of a definition of the term in the subject statute, a definition contained in another statute cannot be adopted since a word may mean different things depending on the setting and context. In this case what was sought to be done was to incorporate the taxable event under one statute into the other statute. The Court held this to be impermissible under the law. It was in this context that the court held that the legal fiction created under the SEZ Act 2005 by treating movement of goods from DTA to the SEZ as export, should be confined to the purposes for which i....
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....which are incidental or inevitable corollaries to giving effect to the fiction. The legal effect of the words 'as if he were' in the definition of owner in section 3(n) of the Nationalisation Act read with section 2(1) of the Mines Act is that although the petitioners were not the owners, they being the contractors for the working of the mine in question, were to be treated as such though, in fact, they were not so. The oft-quoted passage in the judgment of Lord Asquite in East End Dwelling Co. Ltd. vs. Finsbury Borough Council brings out the legal effect of a legal fiction in these Words: 2. LR 1952 AC 109, 132 If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it...The statute says that you must imagine a certain state of affairs it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." In view of the judgment above, in our view a....