AI Drafter 
TaxTMI 
TaxTMI 
2019 (11) TMI 303
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.... of the supplier which were rejected. Aggrieved, the appellant appealed to the first appellate authority, who, vide the impugned orders rejected their appeals. Hence, these appeals. 3. Learned counsel for the appellant submits that in terms of the Special Economic Zone (SEZ) Act, 2005, they are entitled to procure goods and services required for undertaking the authorized operations without any duty or tax liability in terms of section 7 and section 26 of the SEZ Act. The SEZ Act is a self-contained code and provides for the mode and the mechanism for claiming exemption from payment of different duties. Insofar the supply of goods from Domestic Tariff Area (DTA) to SEZ unit is concerned, such supplies would be exempt from payment of duty and such exemption has to be claimed by the developer/entrepreneur after executing an appropriate bond-cum-legal undertaking as per Rule 22 of the SEZ Rules. They are also required to maintain proper accounts, financial year wise, which should indicate the value of the goods imported or procured from DTA, their consumption, etc. On receipt of the goods at the SEZ gate, in respect of which exemptions, drawback or concession are to be claimed by t....
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....a held so in Final Order No. F/76332-76339/2017 dt.30.07.2017. He would submit that in this order the Tribunal has held that a refund under section 11B can be filed not just by the assessee by any person who suffers Central Excise duty which is not payable as per the law. Therefore, he would urge that they are entitled to refund and the impugned orders may be set aside and they may be allowed refund. He further submits that they are also entitled to interest at appropriate rate from the date of filing of the refund claims till the date of payment of the refund amounts. 6. Learned departmental representative, on the other hand, reiterates the findings of the lower authorities and asserts that there is no provision under which the SEZ unit/developer can claim refund of duties paid by their supplier. He draws the attention of the bench to Rule 30 of the SEZ Rules which reads as follows: "30. Procedure for procurements from the Domestic Tariff Area.- (1) The Domestic Tariff Area supplier supplying goods to a Unit or Developer shall clear the goods, as in the case of exports, either under bond or as duty paid goods under claim of rebate on the cover of ARE-1 referred to in N....
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....hat at the time of assessment, it shall be specifically examined whether the goods are required for the authorized operations by the Unit or Developer, with reference to the Letter of Approval or the list of goods approved by the Approval Committee for the Developer. (7) On arrival of the goods procured from the Domestic Tariff Area at the Special Economic Zone gate, the Authorized Officer shall examine the goods in respect of description, quantity, marks and other relevant particulars given in the ARE-1, invoice, Bill of Export of packing list and also as per the examination norms laid down in respect of export goods in cases where the goods are being procured under claim of an export entitlement. (8) Drawback or Duty Entitlement Pass Book credit against supply of goods by Domestic Tariff Area supplier shall be admissible provided payments for the supply are made from the Foreign Currency Account of the Unit. Provided that the reimbursement of duty in lieu of drawback or Duty Entitlement Pass Book credit against supply of goods by Domestic Tariff Area supplier to Special Economic Zone developers shall be admissible even if payment is made in Indian Rupee....
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....omic Zone, the procedure as specified by Specified Officer shall be followed and there shall be no requirement of assessment of Bill of Entry or transfer of the goods under the cover of ex-bond Shipping Bill. (13) A Special Economic Zone Unit or Developer may also procure goods from international exhibitions held in India following the procedures under sub-rule (12). (14) A Unit or Developer may also procure goods or services, without payment of duty from an Export Oriented Unit or Software Technology Park Unit or Bio-Technology Park Unit, by following procedures under sub-rule (12). (15) A Unit or Developer may procure goods and services from another Unit located in the same or any other Special Economic Zone, subject to following conditions, namely:- (i) the receiving Unit or Developer shall file Bill of Entry for home consumption with the Authorized Officer, in quintuplicate, giving description of the goods along with an invoice and packing list for assessment; (ii) on the basis of such assessed Bill of Entry, the goods shall be allowed to be transferred to the receiving Unit or Developer under transhipment permit; (iii) ther....
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....ARE-1 by the supplier and a Bill of Export before the goods enter the SEZ unit. Therefore, the supplies to SEZ developer/unit are at par with the exports. The mechanism provided for such supply in the SEZ Rules only provides for supply against a bond or legal undertaking after following the process and procedure indicated therein. Any SEZ unit claiming a refund is like an overseas buyer of exported goods claiming refund of Central Excise duty for which there is no legal provision. He would submit that the assessee has not made out a case to show under what law they have claimed refund of the excise duty. He would further urge that the Hon'ble Supreme Court has, in the case of Priya Blue Industries Ltd [2004-TIOL-78-SC-CUS] and Flock India Pvt Ltd [2000 (6) SCC 650], clearly held that no refund can be claimed in respect of the goods which have already been assessed unless the assessment itself has been challenged. In this case there is no evidence, whatsoever, that the assessment of the goods by the supplier M/s HBLPSL, Hyderabad to the appellant has been challenged either by M/s HBLPSL themselves or by the appellant. In view of the above, the question of refund does not arise. 8....