TaxTMI 
TaxTMI 
2022 (9) TMI 1122
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.....T.) dated 14.03.2006 on 04.08.2008 for the quarter; April 2008 to June 2008 with respect to unutilized/accumulative Cenvat credit balance of Rs.44,65,69,866/-. The said Cenvat credit is attributable to the inputs used in manufacture of goods exported under bond to a SEZ unit during the said quarter. 1.2 The department observed that 326139.994 MTs of goods were cleared by the appellants under bond and under letter of undertaking. However, the matter was found to be pending before the Hon'ble High Court of Gujarat vide Special Civil Application No.9713 of 2008 on the ground that, "the words export or import or Domestic Tariff Area are defined under the SEZ Act for a specific purpose and the scope thereof would not automatically be extended in other Acts." The said ground was opined to be contradictory to the claim of refund filed by the appellants under Rule 5 of Cenvat Credit Rules, 2004. Accordingly, the aforesaid refund claim was proposed to be rejected vide Show Cause Notice No. 10/38/2008 dated 03.11.2008. The proposal was confirmed vide Order-in- Original No. 127/2009 dated 12.03.2010. The appeal thereof, however, has been allowed vide Order-in-Appeal No. 56/2010 dated 02.0....
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....fication No. 05/2006-CE(NT) dated 14.03.2006 by the respondent/assessee, hence, there is no infirmity in those findings. It has rightly been appreciated that the issue involved in Special Civil Application before Hon'ble Gujarat High Court pertains to the levy of export duty under Customs Act, 1962 in respect of the movement of goods from the DTA to the SEZ, and that it was totally unrelated and unconnected to the impugned refund claim. Also that the outcome of said Special Civil Application had no bearing on the present claim. Learned Counsel further submitted that the order of Original Adjudicating Authority otherwise cannot be considered as correct as the said authority has travelled beyond the scope of the show cause notice by holding that the credit accumulation on account was only to the tune of Rs.2,16,37,636/-. Whereas the show cause notice was issued only on the contention that the stand of the assessee/respondent before Hon'ble Gujarat High Court was contrary to the stand taken in the refund claim. Commissioner (Appeals) has rightly held the O.I.O to be the one beyond the scope of show cause notice. However, the findings of Commissioner (Appeals) declining the interest li....
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....ted in accordance with the Export of Services Rules, 2005. 6. The SEZ units/Special Economic Zone, as per SEZ Act, 2005, is specifically delineated duty free enclave within the national borders of a country that has more liberal economic laws than rest of the country and shall be deemed to be a foreign territory for the purposes of trade operations, duties and tariffs (Section 53 of the SEZ Act). As per Section 2(m)(ii) of SEZ Act, 2005, export means supplying goods, or providing services, from the Domestic Tariff Area (DTA) to a Unit or Developer in the same or in the different SEZ. Central Government vide Notification No. 11/2002-Central Excise (N.T.), dated 1st March, 2002 directs that refund of Cenvat credit shall be allowed in respect of: (a) input or input service used in the manufacture of final product which is cleared for export under bond or letter of undertaking; (b) input or input service used in providing output service which has been exported without payment of servie tax, Subject to safeguards, conditions and limitations, set out in the Appendix to this notification. (7 in number) 1st and 7th Condition are more applicable which ....
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....rat High Court raised was, "whether supplies to SEZ by a DTA amounts to an export under Customs Act, 1962 as well". However, the issue in the present appeal is observed to be the one with regard to the claim of refund of accumulated Cenvat credit under Rule 5 of CCR, 2004. Hence, we are of the opinion that the stand of Original Adjudicating Authority that the refund claim is premature due to the similar matter being subjudiced before Hon'ble High Court, is a wrong observation. 9. We further observe that the said Special Civil Application stands decided by Hon'ble High Gujarat high vide their judgment dated 04.11.2009 reported as 2010 (249) ELT 3 (Guj.), it was held therein that Customs Act defines export as an activity of taking goods out of the territory of India. The said definition of export in Customs Act has not be amended to incorporate the movement of goods from DTA to SEZ as taxable event and entailing export duty. Accordingly, the movement by assessee/Arcelor/Essar Steel Ltd. was denied to be a taxable event under customs law. These observations when read with the aforesaid provision i.e. Section 53 of the SEZ Act, makes it clear that the transaction of the present case....