TaxTMI 
TaxTMI 
2018 (10) TMI 1474
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....cation 50/2008-CE (N.T.), dated 31.12.2008 is clarificatory and therefore retrospective in nature? 2)When common inputs are used and the assessee has not maintained separate accounts, whether the assessee/1st respondent is liable to pay 10% of the value of goods cleared to SEZ developers as per Rule 6(6) of the CENVAT Credit Rules prior to 31.01.2008?" 4.The assessee is a manufacturer of Aluminium Composite panels with glass, falling under Chapter Sub-heading 7610 1000 of the Central Excise Tariff Act, 1985. The assessee is registered with the Central Excise and are availing input credit of duty under CENVAT Credit Rules, 2004, on the inputs used by them or in relation with the manufacture of final products cleared by them. The respondent/assessee, while clearing their final products, viz., Aluminium Composite (glass fitted) panels made out of Aluminium panels and glass, to local buyers, pay appropriate duty. For the final products cleared to the developers of SEZ, viz., M/s.DLF Infocity, M/s.Tata Consultancy and M/s.HCL Technology, no duty is paid. 5.The case of the Revenue is that prior to 01.04.2008, the manufacturer who uses common inputs for both exempted and du....
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....intain separate accounts and that Rule 6(6) of the Rules does not give any exception to the clearances made to developers of SEZ from operation of Rule 6(3)(b)/6(3)(i) of the said Rules. 9.Identical issue was considered by the High Court of Chhattisgarh in Steel Authority of India (supra), wherein one of the questions, which was framed for consideration was whether the Tribunal erred in holding the amendment notification 50/2008, dated 31.12.2008 as retrospective, when admittedly the said notification provides that the same shall come into force on their publication in official gazette?. 10.The Court, on interpretation of the provisions of SEZ Act, held that the amendment being a 'substitution' is retrospective. The operative portion of the judgement in Steel Authority of India (supra) reads as follows: "37.In the present case, the Assessee had supplied goods from the domestic tariff area to a developer and it is to be treated as an export in view of sub-section 2(m) of the SEZ Act. In case it is treated to be export then all benefits as given to export under any other law should be given. 38.In case, the general principle as well as the framework of....
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....e from the date the 2004-Rules were enforced. 53.Our conclusions are as follows: (a) . . . . . (b)The amended rule is merely clarificatory, corrects an obvious mistake, removes discrimination between developers and units in special area zones. It merely clarifies or explains the existing law of providing nonimposition of excise duty on goods that are held to be export under the Special Area Zone Act; (c)The substituted sub-rule 6(6)(i) is enforced from the date the 2004-Rules came into force." 11.It is submitted by the learned counsel for the Revenue that an appeal has been preferred against the aforementioned decision before the Hon'ble Supreme Court and the same is pending. 12.Identical view was taken by the High Court of Karnataka in the case of Commissioner of Central Excise and Sales Tax, Bangalore vs. Fosroc Chemicals (India) Pvt.Ltd., [2015 (318) E.L.T.240 (Kar)]. The question which was framed for consideration was whether the amendment to the Cenvat Credit Rules 2004, by substituting clause (i) of sub-rule (6) of Rule 6 of Cenvat Credit Rules, 2004, by way of notification No.50/2008-C.E.(N.T.), dated 31.12.2008 is prospective in....
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....o.54/2015, this Court observed thus: "The present appeal is directed against the order dated 1.6.2015, passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Bangalore (hereinafter referred to as 'Tribunal', for short) in Final Order No.21234/2015, whereby the Tribunal has set aside the Order and has allowed the appeal. 2.We have heard Mr.Jeevan J.Neeralgi, learned counsel for the appellant-Revenue. 3.The contention raised on behalf of the appellant was that the decision of the Tribunal in the case of 'Sujana Metal Products Limited v. CCE, Hyderabad', reported in [2011 (273) E.L.T.112 (Tri-Bang)] is carried before the Apex Court and the Apex Court is seized with the matter, this Court may entertain the appeal. 4.We are not at all impressed by the submission for the simple reason that the tenor of the order shows that practically there was consensus including on behalf of the appellant-Revenue that the issue is already covered by the earlier decision of the Tribunal in the case of Sujana Metal Products Limited's (supra). If such was the position and based on the same, the Tribunal has passed the or....
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....Finance Act, 1994(32 of 1994), the Central Government hereby makes the following Rules further to amend the CENVAT Credit Rules, 2004, namely, "1.(1)These rules may be called the CENVAT Credit (Third Amendment) Rules, 2008. (2)They shall come into force on the date of their publication in the Official Gazette." 2.In the CENVAT Credit Rules, 2004, in rule 6, in sub-rule (6), for clause (i), the following clause shall be substituted, namely:- "(i)cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorized operations; or". (Notification NO.50/2008-C.E.(N.T), dated 31.12.2008." 17.On a reading of the above amendment, it is evident that clause (i) of sub-rule 6 of Rule 6 was substituted, thereby, the provisions of sub-rules (1), (2), (3) and (4) shall not be applicable in case the excisable goods removed without payment of duty or either cleared to a unit in a special economic zone or to a developer of a special economic zone for their authorised operations. Thus, the question would be as to what would be the meaning of the word 'substitute';. 18.The Hon'ble Supreme Court in the case....
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....t of just deleting the old rule and making the new rule operative. In Mangilal Pindwal case, this Court upheld the legislative practice of an amendment by substitution being incorporated in the text of a statute which had ceased to exist and held that the substitution would have the effect of amending the operation of law during the period in which it was in force. In Koteswar case, a three-Judge Bench of this Court emphasised the distinction between 'supersession' of a rule and 'substitution' of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule his brought into existence in its place." 21.We may also note that Circular No.29/2006-Cus, dated 27.12.2006, issued by Central Board of Excise & Customs, New Delhi, pertaining to implementation of Special Economic Zone Act, 2005 and Special Economic Zone Rules, 2006, has notified as under: "4.In the light of the aforesaid provisions, with effect from 14.3.2006, Chapter XA of the Customs Act, 1962, the SEZ Rules, 2003, the SEZ (Customs Procedure) Regulations, 2003, and the exemption Notification No.58/2003-C.E., dated 22.7....