2025 (7) TMI 1765

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.... was inter alia engaged, in the manufacture of excisable goods namely "Pre-fabricated Steel Buildings" falling under Chapter 94 of the First Schedule to the Central Excise Tariff Act. They were also availing the benefit of CENVAT Credit on inputs under the relevant provisions of the CENVAT Credit Rules, 2004. During the period of dispute, which comprises six quarters specified in the Table given below, the assessee-respondent supplied "Pre-fabricated Steel Buildings" to Nokia India Pvt Ltd., a unit in Nokia Telecom Special Economic Zone ('Nokia SEZ', for short), Chennai. These clearances were effected under Letter of Undertaking without payment of duty in terms of Rule 19 of the Central Excise Rules, 2002 : Period for which refund claim filed Date of filing refund claim Amount of refund (in Rs.) Details of Order-in-Original January 2007 to March 2007 10.06.2008 39,13,832/- No. R/483/08-09 dated 29.08.2008 passed by Asst. Commissioner, Kalyan-II Division in rejection of all for refund claims April 2007 to June 2007 02.06.2008 84,32,797/- July 2007 to September 2007 17.06.2008 60,52,189/- October 2007 to December 2007 23.06.2008 16,31,142/- January 2008 to March 200....

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....Commissioner (Appeal) and in allowing the appeals in favour of Revenue. 2.5 Feeling aggrieved with the aforesaid order of the Tribunal dated 24.06.2009, the assessee-respondent had filed Central Excise Appeal No.140 of 2010 before the Hon'ble High Court of Bombay along with Writ Petitions No.2469 of 2010; 9075 of 2010. This was finally disposed of by the Hon'ble High Court in pronouncement of its judgement on 29.11.2024, by quashing the order dated 24.06.2009 and restoring the appeal to the file of the Tribunal for deciding the case afresh. On the basis of the aforesaid judgement dated 29.11.2024 issued by the Hon'ble High Court of Bombay, we had taken up these cases for hearing and disposal of these appeals filed before this Tribunal. 3.1 The company representative of the respondent-assessee submitted that the issue of dispute concerning the matter of supply made to SEZ from DTA shall qualify as 'export' under Rule 5 of the Cenvat Credit Rules, 2004 (CCR of 2004, for short) and Rule 18 of the Central Excise Rules, 2002 has been settled in view of the clarification issued by the Central Board of Excise and Customs (CBEC) vide Circular No.1001/8/2015-CX.8 dated 28.04.2015. Therefo....

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....5-CX.8 F. No. 267/18/2015-CX. 8 Government of India Ministry of Finance (Department of Revenue) Central Board of Excise & Customs New Delhi, the 28th April, 2015 Subject : Clarification on rebate of duty on goods cleared from DTA to SEZ - Regarding. Kind attention is invited to Notifications No. 6/2015-C.E. (N.T.) and 8/2015-C.E. (N.T.), both dated 1-3-2015, vide which the meaning of export has been elaborated in both Rule 5 of Cenvat Credit Rules, 2004 and Rule 18 of Central Excise Rules, 2002. Post these amendments, apprehensions have been expressed by the trade as to whether the following benefits would be available after these amendments : i. Benefit of rebate of duty on goods cleared from DTA to SEZ. ii. Refund of accumulated CENVAT credit when goods are cleared from DTA to SEZ. 2. It is seen that : i. Section 2(m)(ii) of the SEZ Act, 2005 defines export to, inter alia, mean "supplying goods, or providing services, from the Domestic Tariff Area to a Unit or Developer". ii. Section 26(1)(d) of SEZ Act, 2005 mentions that subject to the provisions of the sub-section (2), every Developer and entrepreneur shall be entitled to drawback or such other benefits as ma....

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.... Rules, 2002 has only been made more explicit by incorporating the definition of export as given in the Customs Act, 1962. Since SEZ is deemed to be outside the Customs territory of India, any licit clearances of goods to an SEZ from the DTA will continue to be export and therefore be entitled to the benefit of rebate under Rule 18 of CER, 2002 and of refund of accumulated CENVAT credit under rule 5 of CCR, 2004, as the case may be..." (Emphasis supplied) 8.2 On plain reading of the aforesaid circular dated 28.04.2015 issued by the Ministry of Finance, CBEC, it transpires that clearances of excisable goods made from DTA to SEZ shall be treated as 'export' and the resultant CENVAT Credit in the books of accounts of the assessee, when claimed as refund of accumulated CENVAT credit shall be allowed in terms of Rule 5 CANVAT Credit Rules, 2004. 8.3. In this regard we find that the issue has also been examined by the Hon'ble High Court of Gujarat in the case of Essar Steel Limited (supra) by holding that movement of goods from Domestic Tariff Area to Special Economic Zone units or developers shall be considered as export. The relevant paragraphs of the said judgement is extracted an....