TaxTMI 
TaxTMI 
2026 (3) TMI 928
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.... Zone Rules, 2006 ("SEZ Rules"). When such goods are removed for repair, an internal challan ("Returnable Gate Pass /RGP") is generated, post which challans are also generated on the SEZ portal. Rule 51(4) requires that such temporarily removed goods should be brought back to the SEZ unit within 120 days or further time period as permitted. 2.2 The goods are exited from the plant, basis such challans, and when goods are returned, the same are accounted for in the internal records by mapping with the corresponding SEZ challans. Subsequently, a close request is also submitted to the SEZ Customs Department, and the authorities after verifying the RGP challans, close the request online. 2.3 During the period from Financial Year 2015-16 to Financial Year 2018-19, the appellant had removed certain goods for repair, under the cover of 173 RGPs, involving duty amount of Rs.4,12,47,971/-, which were duly generated on the SEZ Online portal as well. It is pertinent to note that the jurisdictional Specified Officer of customs stationed at the SEZ unit checks all the outward and inward movement of goods including the subject clearances. 2.4 Basis the queries of the Specified Officer an....
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....the specified officer. 2.9 Out of the remaining 26 RGPs (viz. 173 less 145 less 2): • one RGP pertained to clearance of goods abroad and re-import; and • for 25 RGPs, the appellant never removed the goods from the SEZ unit, for which purpose no record could be produced before the authorities of receipt back of inputs. 2.10 However, without considering the submissions of the appellant, the Ld.Principal Commissioner confirmed the demand of Rs.31,28,899/- in respect of the aforesaid 26 RGPs, the details which are as under - Sl. No. RGP Date Amount in dispute (in Rs.) Finding Physical export for repairs 1. 12.10.2018 7,02,656 Such RGP was generated in respect of goods physically moved out of India for repair, and reimported post repairs and claimed exemption from duty under Notification No. 46/2017Cus dated 30.06.2017. However, such Notification No. 46/2017 will apply only for those cases where order permitting clearance has been given on or before 30.06.2017. The Appellant removed the goods on 12.10.2018, for which the applicable notification is Notification No. 45/2017-Cus dated 30....
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....earing on behalf of the appellant submitted that the appellant is an SEZ Unit and no Customs duty is leviable on the goods imported to the SEZ Unit. 3.1 It is submitted that in respect of the RGP dated 12.10.2018 at S. No.1 of the table above, the Ld. Principal Commissioner has confirmed a demand of Rs.7,02,656/-, basis the finding that as per the Customs Notification bearing No.45/2017-Cus dated 30.06.2017, the appellant is liable to pay duty on the amount of value addition owing to the cost of repairs carried out including the cost of materials used in repair, insurance and both ways freight charges. 3.2 In this regard, it is submitted that there can be no demand of customs duty, since the appellant is an SEZ Unit. As per Section 26(1)(a) of the Special Economic Zones Act, 2005 ("SEZ Act"), an SEZ developer is exempted from any duty of customs, under the Customs Act, 1962 or the Customs Tariff Act, 1975 or any other law for the time being in force, on the goods imported into, or service provided in, a Special Economic Zone, or a Unit, to carry on the authorized operations by the Developer or entrepreneur. 3.3 Further, he submitted that in the instant case, there is no di....
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....fication at any stage of the proceedings. In this regard, reliance is placed on Share Medical Care v. Union of India, 2007 (209) E.L.T. 321 (S.C.) wherein it was held that if the assessee is entitled to benefit under two different notifications, it is right of the assessee to claim whichever notification that provides more benefit, at any stage. Therefore, the Appellant is eligible to claim exemption under Section 26(1)(a) of the SEZ Act before this Hon'ble CESTAT. 3.7 Further, he submitted that in respect of such demand, the Ld.Principal Commissioner has observed that such goods were returned on 02.01.2020 which is after a lapse of 447 days, thereby being beyond the prescribed time period of 120 days for return of goods after repair. 3.8 In this regard, it is submitted such a finding is contrary to the observations made by the Ld. Principal Commissioner in para 7.4.7.4 of the impugned Order, the relevant portion of which is extracted below - "7.4.7.4....The underlying objective of the SEZ scheme is to make Indian manufacture competitive in the international market. For that purpose, the SEZ Units are allowed procure the goods from DTA without payment of duty so that....
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....ase where duty is not levied or not paid or short-levied or short-paid, or interest is not charged, the date on which the proper officer makes an order for the clearance of goods;(b) in a case where duty is provisionally assessed under section 18, the date of adjustment of duty after the final assessment thereof or re-assessment, as the case may be; (c) in a case where duty or interest has been erroneously refunded, the date of refund; and (d)in any other case, the date of payment of duty or interest. 3.14 In the instant case, he submitted that the Ld. Principal Commissioner has taken the first date of payment by the appellant during the stage of investigation, i.e., 13.05.2019 as the relevant date for calculation of limitation period under clause (d) and has held that the demand is within the limitation period. 3.15 It is submitted that such a finding of the Ld. Principal Commissioner is incorrect and legally perverse, since it adopts the payment of duty in respect of different consignments which are not part of the present proceedings, as relevant date for consignments which are in dispute. The Ld. Principal Commissioner has adopted such an interpretation to cover the depar....