Custom, Excise & Service Tax Tribunal
M/S Sai Wardha Power Ltd vs Cce, Nagpur on 4 March, 2015
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II
APPEAL NO. E/89802/13, E/89952 to 89954/13
and E/89963 to 89966/14
(Arising out of Order-in-Appeal No. NGP/EXCUS/000/APPL/101/14-15 dated 03.09.2013 and passed by the Commissioner of Central Excise & Customs (Appeals), Nagpur.)
For approval and signature: Honble Mr. P.K. Jain, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? 2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair copy : Seen of the order? 4. Whether order is to be circulated to the Departmental : Yes authorities? =================================================== M/s Sai Wardha Power Ltd. : Appellant Versus CCE, Nagpur : Respondent Appearance Shri D.H. Nadkarni, Advocate Shri J.C. Patel, Advocate : For Appellant Shri Hitesh Shah, Commissioner (A.R.) : For Respondent CORAM: Honble Mr. P.K. Jain, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) Date of Hearing : 04.03.2015 Date of Decision: 22.04.2015 ORDER No. . Per: Ramesh Nair:
The appeals are listed for maintainability, in view of the exclusion clause under Section 35B (1) proviso clause (b), under Central Excise Act, 1944, as the issue pertains to admissibility of rebate claim.
2. Shri J.C. Patel, learned Counsel for the appellant along with Shri D.H. Nadkarni, learned Advocate submits that in the present appeals the issue involved is rebate of duty paid on the goods supplied to Special Economic Zone. He submits that appeals are maintainable before this Tribunal. He invited our attention to the proviso to Section 35B (1) and proviso clause (b), according to which only in those cases, appeals shall not lie to the Appellate Tribunal where rebate of duty of excise on goods exported to any country or territory outside India or on excisable material used in the manufacture of goods which are exported to any country or territory outside of India. It is his submission that in the present case the goods on which duty was paid and refund thereof sought for was not exported to any country or territory which is outside India. The goods have been exported to Special Economic Zone which is located within country and territory of India. Therefore, the present case does not fall under the category provided in clause (b) of proviso to Section 35B. He further submits that in the earlier occasion this Appellate Tribunal has entertained the appeals in the identical cases and disposed of on merits. Some of these cases are cited as under:-
(i) Ultratech Cement Ltd. Vs. Commissioner of Central Excise, Nagpur - 2015 (315) ELT 238 (Tri.-Mumbai).
(ii) Zydus Mayne Oncology Pvt. Ltd. Vs. Commissioner of Central Excise & Customs, Vapi 2010 (262) ELT 280 (Tri.-Ahmd.).
(iii) Commissioner of Central Excise, Bangalore Vs. Shree PLA Pvt. Ltd. 2013 (296) ELT 282 (Tri.-Bang.).
(iv) Tata Consultancy Services Ltd. Vs. Commissioner of Central Excise & Service Tax (LTU), Mumbai 2013 (29) STR 393 (Tri.-Mumbai)
3. On the other hand Shri Hitesh Shah, learned Commissioner (A.R.) appearing on behalf of Revenue submits that undisputedly supply of goods was made to SEZ as per the SEZ Act, 2005 and Central Excise Act, 1944. The supply made to SEZ is treated as export which is entitled for all benefits extended to normal export including the refund of claim on goods supply to SEZ. Therefore the supply made to SEZ being treated as export, it squarely falls under clause (b) of proviso to Section 35B(1), accordingly this Appellate Tribunal has no jurisdiction to entertain the present appeals. He submits that for claiming rebate, the right forum is the Hon'ble Joint Secretary - Revisionary Authority to Government of India against the impugned order. He submits that this Appellate Tribunal in the following judgement did not entertain the appeals on the identically issue and held that the appeal is not maintainable before this Appellate Tribunal. Some of those cases are cited as under:-
(i) Hindustan Petroleum Corpn. Ltd. Vs. Commissioner of Central Excise, Mumbai-I 2013 (294) ELT 509 (Tri.-Mumbai)
(ii) Commissioner of Central Excise, Mumbai Vs. Essel Propack Ltd. final order No. A/800-801/11/EB/C-II dated 29.08.2011.
(iii) Union of India Vs. Jalan Udyog 1993 (68) ELT 9 (S.C.) He further submits that in the following judgment Hon'ble Joint Secretary - Revisionary Authority to Government of India has entertained the Revision Applications and disposed of on merits:-
(i) P.K. Tubes & Fittings Pvt. Ltd. 2012 (276) ELT 113 (GOI)
(ii) ACE Hygiene Products Pvt. Ltd. 2012 (276) ELT 131 (GOI)
(iii) Rohit Poly Product Pvt. Ltd. 2012 (284) ELT 137 (GOI)
(iv) Indo Amines Ltd. - 2012 (284) ELT 147 (GOI)
(v) Essel Propack Ltd. - 2014 (312) ELT 946 (GOI) In view of the above decisions given by the Hon'ble Joint Secretary - Revisionary Authority to Government of India, it is clear that remedy against the order passed by the Commissioner (Appeals) lies before the Hon'ble Joint Secretary - Revisionary Authority to Government of India and not before this Appellate Tribunal. Learned A.R. also relied upon the judgment of Hon'ble High Court of Chhattisgarh in the case of Union of India Vs. Steel Authority of India Ltd. 2013 (297) ELT 166 (Chhattisgarh) wherein para 28 is reproduced below:-
28.?Section 2 of the Customs Act is titled as definitions. Sub-section (11) of section 2 [sub-section 2(11)] explains what is customs area. Sub-section (18) of section 2 [sub-section 2(18)] explains what is export. Sub-section (23) of section 2 [sub-section 2(23)] explains what is import. Sub-section (27) of section 2 [sub-section 2(27)] explains what is India. Hon'ble High Court of Gujarat in the case of Plastene India Ltd. Vs. Union of India - 2014 (314) ELT 14 (Guj.), it was held that the supply made to SEZ shall be treated as export. He therefore submits that the export squarely falls under clause (b) of proviso to Section 35B (1), hence in the present case this Appellate Tribunal has no jurisdiction to entertain the present appeals and the appeals deserve to be dismissed as non-maintainable.
4. We have carefully considered the submissions made by both sides. We have carefully read the clause (b) of proviso to Section 35B (1) which is reproduced below:-
(b) A rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India. From the plain reading of above provision, we find that the wordings of clause (b) of proviso to Section 35B(1) is clear that only those cases where the goods have been exported to any country or territory which is outside of India, will fall under this clause and only in those cases this Appellate Tribunal has no jurisdiction to entertain the appeal. However, in the present case the goods were not exported to any country outside of India but supply to SEZ which is undisputedly located within India. In view of this fact and legal provision of Section 35B(1) proviso to clause (b) a different meaning cannot be interred as against the plain language of the provision which mandate that only in those cases where goods are export to outside of India, this Appellate Tribunal has no jurisdiction to entertain the appeal. Therefore, we are of the view that in the present case where refund/rebate is related to supplies made to SEZ within India, this Tribunal has jurisdiction to entertain the appeal. However as per judgment cited by rivals it is observed that in some of the judgments this Tribunal has entertained the appeals and disposed on the merits, and in some of the cases this Tribunal has viewed that this Tribunal does not have jurisdiction in the identical cases. It is also seen that even the Hon'ble Joint Secretary - Revisionary Authority to Government of India also entertained the identical cases and disposed of the same on merits. This shows that there are clearly divergent views among Benches of this Tribunal as well as the Hon'ble Joint Secretary (Revisionary Authority) to Government of India. Therefore, we are of the considered view that the matter should be placed before the Larger Bench to decide the preliminary issue that in the matter of refund/rebate against the supply of goods to the SEZ located in India, whether the appeal lies before this Appellate Tribunal or a Revisionary Application before the Joint Secretary (Revisionary Authority) to Government of India.
5. The registry is directed to place this matter before the Hon'ble President for constituting the Larger Bench for answering the question as mentioned above.
(Pronounced in Court on 22.04.2015) (P.K. Jain) Member (Technical) Ramesh Nair Member (Judicial) Sp/ 6