TaxTMI 
TaxTMI 
2024 (7) TMI 1727
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....otification no. 18/2011- Cus dated 01.03.2011 exempts all goods cleared from a SEZ and brought to any place in India in accordance with the provisions of the Foreign Trade Policy 2004-2009, from whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the Customs Tariff Act, 1975 (SAD). No such exemption was, however. applicable if such goods, when sold in domestic tariff area, were exempted by the State Government from payment of sales tax or value added tax. It is therefore evident that the exemption was available only in respect of the goods cleared from the SEZ and on which appropriate sales tax or value added tax was paid/payable. The matter regarding said exemption in respect of the goods cleared from the SEZ and used in the manufacture etc. but not sold on payment of sales tax or value added tax was further clarified vide Circular No. 44/2013- Customs dated 30.12.2013 stating that the benefit of SAD exemption on goods cleared from the SEZ/ FTWZ unit into DTA unit on stock transfer basis for self-consumption i.e. otherwise than for sale as such, was not available under notification no. 45/2005-Customs dated 16.05.2005. As the said circula....
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....014 was issued to the Appellant and the warehouse and asking them to show cause as to why:- "(a) Special Additional Duty of Customs (SAD) of Rs. 10,70,668/- (Rs. Ten Lakh Seventy Thousand Six Hundred Sixty Eight only) leviable under Section 3 of Customs Tariff Act, 1975 read with Notification No. 45/2005-Cus and payable on the goods imported by the said M/s ASCMPL and M/s National Products and cleared into DTA should not be demanded and recovered from them under Section 28(1) of the Custom Act, 1962 read with Section 30 of SEZ Act, 2005 and Rule 48 of SEZ Rules, 2006; and also by enforcing the conditions of the Bond-cum-Legal Undertaking executed by M/s ASCMPL as they have violated the conditions thereof read with various provisions of the Custom Act, 1962 as discussed hereinbefore; (b) Interest on the said amount of duty should not be demanded and recovered under Section 28AA of Custom Act, 1962 at the rates as applicable; (c) Penalty should not be imposed upon M/s ASCMPL under Section 117 ibid for violating the conditions of the Bondcum-Legal Undertaking and the provisions of the Custom Act, 1962 as discussed above in this Notice;" 2.3 The Show Cause....
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....t of Notification by them has been supported by way of Chartered Accountant's Certificate certifying that the Appellant paid the due VAT on the finished goods. ⮚ In any case if SAD was required to be paid then the same should have been allowed as CENVAT credit to them. Accordingly, Appellant should be allowed. 3.3. Learned Authorized Representative reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in the appeal. 4.2 The Exemption Notification No. 45/2005 dated 16.05.2005 provides as follows:- "In exercise of the powers conferred by sub-section (1) of section 25 of the Customs Act, 1962 (52 of 1962), the Central Government, being satisfied that it is necessary manufactured in a special economic zone and brought to any other place in the public interest so to do, hereby exempts all goods produced or in India in accordance with the provisions of the Foreign Trade Policy 2004-2009, from the whole of the additional duty of customs leviable thereon under sub-section (5) of section 3 of the Customs Tariff Act, 1975 (51 of 1975): Provided that no such exemption shall b....
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....tions of Section 22 of the Income-tax Act were possible. It was opined that if one interpretation is possible and the same is clear, the next thing to be considered would be what would be the effect of the amendment. Referring to Benion's Statutory Interpretation and G.P. Singh's Principles of Statutory Interpretation, it was held: "An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force, the amending Act also will be part of the existing law." It furthermore noticed the decision of the Constitution Bench in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas and Anr. [(1968) 3 SCR 623] = 2002-TIOL-700-SC-MISC, wherein it was opined that an Explanatory Act is generally made to supply an obvious omission or to clear up doubts as to the meaning of previous Act. We are herein not concerned with such a situation. In W.P.I.L. Ltd., Ghaziabad v. Commissioner of Central Excise, Meerut, U.P. [(2005) 3 SCC 73] = 2005-TIOL-51-SC-CX....
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....x-I, Ahmedabad v. Gold Coin Health Foods Pvt. Ltd. [(2008) 11 SCAL E 497] = 2008-TIOL-152-SC-IT. A bare perusal of the said decision would, however, show that a Three Judge Bench of this Court noticed that the Act intended to make the position explicit which otherwise was implicit. The Bench went back to the provisions of the Original Act to hold that the clarification issued by the Parliament was in tune with the actual interpretation of the original provision. In that view of the matter, it was held: "As noted by this Court in Commissioner of Income Tax, Bombay & Ors. v. Podar Cement Pvt. Ltd. & Ors. [(1997) 5 SCC 482] = 2002-TIOL-445-SC-IT the circumstances under which the amendment was brought in existence and the consequences of the amendment will have to be taken care of while deciding the issue as to whether the amendment was clarificatory or substantive in nature and, whether it will have retrospective effect or it was not so." 33. We may also notice that in that judgment itself a distinction has been made with a clarificatory provision and a substantive provision to opine that Explanation 4 was clarificatory in nature and not a substantive provision. ....
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.... the present assessees. This fortuitous circumstance cannot take away the vested rights of the assessees at hand". 35. Reverting to the decision of a Kerala High Court in CIT v. S.R. Patton [(1992) 193 IT R 49 (Ker)] = 2002-TIOL2390-SC-IT wherein Gujarat High Court's judgment was followed, this Court noticed that explanation was not held to be a declaratory one but thereby the scope of Section 9(1)(ii) of the Act was widened. The law in the aforementioned premise was laid down as under: "17. As was affirmed by this Court in Goslino Mario (supra), a cardinal principle of the tax law is that the law to be applied is that which is in force in the relevant assessment year unless otherwise provided expressly or by necessary implication. [See also: Reliance Jute and Industries. v. CIT [(1980) 1 SCC 139]. An Explanation to a statutory provision may fulfil the purpose of clearing up an ambiguity in the main provision or an Explanation can add to and widen the scope of the main section (See: Sonia Bhatia v. State of U.P. [(1981) 2 SCC 585 at 598]. If it is in its nature clarificatory then the Explanation must be read into the main provision with effect from the time th....
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....stion but for our purpose, it would be suffice to hold that the explanation is not clarificatory or declaratory in nature." 4.5 In view of the discussions as above we do not find any merits in the impugned order. As we have decided the issue on merits itself we are not rendering any findings on the other issues raised by the appellant in appeal and during the arguments. 5.1 Appeal is allowed. (Dictated and pronounced in open court) ============= Document 1 DEEPAK GULATI & ASSOCIATES Chartered Accountants CA Head Office 23, Hanuman Road, Connaught Place New Delhi- 110001 Telefax: 011 23346816, 23367142-43 Branch Office JCM - 1. DLF Phase - II, Gurgaon - 122002 Telefax: 0124 - 4363743 E-mail: [email protected] Website: www.dga.in CERTIFICATE 1. With regards to the imports under DTA Bill of Entry No.0000137 dt.31-05-2013 and TR 6 challan No.121/2013_dt.31-05-2013 wherein the Special Additional Duty has been exempted under Notification No. 45/2005 dt.16-05-2005 as amended vide Notification no. 18/2011 dt.01-03-2011 and such exemption was sought by M/s National Products, A-32, Mayapuri Industrial Area, New Delhi In respect of the goods cleared from Arshiya Nor....