2016 (7) TMI 989

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.... Economic Zone, Jigani Link Road, Bommasandra, Bangalore. In respect of imports made under exemption Notifications No.24/2005 Customs dated 01.03.2002 and 25/2005-Customs dated 1.3.2002, as amended, there are no import conditions consequent upon installation/put to use in the factory. However, in respect of capital goods imported availing benefit under Sl.No.248(1)(a) and (b) of exemption Notification No.21/2002 Customs dated 01.03.2002T as.amended certain conditions under Sl.No 53(i) of the said Notification have to be fulfilled. In the instant case, the applicant have cleared the capital goods imported under Notification No.21/2002 Customs dated 01.03.2002 as amended, failed to fulfill the conditions prescribed, under Sl.No 53(i) of the said  Notification, in as much as the said goods have been transferred within period of seven years, from date of installation. Hence Show Cause Notice (SCN) were issued rejecting the rebate claim based on the fact that the goods have been cleared without fulfilling the conditions of the above said Notification. 3. Being aggrieved by the said Order-in-Original, applicant filed appeal before Commissioner (Appeal), Bangalore, who rejected th....

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....id Notification. 4.4 The applicant submits that assuming without admitting only for argument sake that by clearing goods imported under Notification No. 21/2002-Cus dated 01.03.2002 which was subject to condition No.53 to its own SEZ unit has violated the condition No.53, then the Department could have demanded the duty which was foregone in terms of the above Notification i.e. BCD only. As regards, other duties of customs are concerned on the goods imported, neither there was any exemption from payment nor the applicant claimed exemption from payment of said duties. Under these circumstances, the purported non-fulfillment of condition vide Sl.No.53 of Notification No.21/2002-Cus would have no bearing on entitlement to rebate of duty which was only in respect of CVD, education cess and SHE cess and Special CVD. 4.5 The applicant submits that the Original Authority in his adjudication order had made a categorically finding as to types of duties which are eligible for rebate in terms of rule 18 of the Central Excise Rules, 2002 read with Notification No.19/2004-CE(NT) dated 06.09.2004. The rebate which was claimed by the applicant in respect of all the goods were the very same ....

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....of duty under rule 18 of the CER, 2002, then whatever duty actually paid on goods cleared to SEZ is eligible as rebate/refund. In the applicant's case, it is an undisputed fact that the applicant had paid duty on clearance of goods to SEZ. 4.9 The applicant submits that the Department does not dispute the legal position at supply of goods to SEZ would amount to "export". This is evident from the definition of "export" in Section 2(m)(ii) of the SEZ, 2005. Any (export' of goods is not liable for payment of duty. Further CBEC vide its Circular No.6/2010-Cus dated 19.03.2010 has clarified that rebate under rule 18 is admissible when the supplies were made from DTA to SEZ. 4.10 It is submitted that the applicant had imported R&D equipments under Sl.No.248 of Notification No.21/2002-Cus which is subjected to condition No.53, the applicant has complied with all the conditions. 5. The applicant also filed Application for condonation of delay for filing appeal beyond stipulated 90 days period as under: 5.1 The applicant submits that they are in receipt of the impugned order passed by the Commissioner (Appeals) on 07.03.2012. The revision application against the above im....

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....EZ Unit located at SEZ, Bangalore on payment of duty and filed rebate claims of such duty paid. The original authority rejected the rebate claim on the ground that the applicant failed to comply with condition stipulated in the Notification No. 21/2002-Cus dated 01.03.2002. Commissioner (Appeals) upheld the impugned Order-in-Original. Now, the applicant has filed this Revision Application on grounds mentioned in para (4) above. 9 At the outset, Government observes that the Revision Application has been filed beyond stipulated period of three months. The applicant has filed Application for condonation of delay wherein they mainly stated that the delay has occurred due to postal delay and may be condoned. The applicant has submitted that as the impugned was received them on 07.03.2012, the revision application against the said order should have been filed within a period of three months which expired on 07.06.2012. They further contended that they have duly sent the application on 06.06.2012 itself and going by this date there is no delay. It is requested that in terms of Rules 10(2) of Central Excise (Appeal) Rules 2011 read with Section 35EE of the Act the delay may be condoned ....