Custom, Excise & Service Tax Tribunal
C.C.E. & S.T. Rajkot vs Parth Trading Co on 19 February, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
West Zonal Bench, Ahmedabad
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Appeal No : E/11038/2015-SM
(Arising out of OIA-RAJ-EXCUS-000-APP-286-14-15 Dated 31/03/2015 passed by Commissioner of Central Excise-RAJKOT)
C.C.E. & S.T. Rajkot : Appellant (s)
Vs
Parth Trading Co. : Respondent (s)
Represented by Appellant (s) : Shri N. Satwani (Authorised Representative) Respondent (s): Shri Jigar Shah (Advocate) For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
No 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities?
Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Date of Hearing / Decision : 19/02/2016 ORDER No. A/10113 / 2016 Dated:19/02/2016 Per : Mr. P.K. Das;
Revenue filed this appeal against the order of the Commissioner (Appeals), where the Adjudication Order was set Aside.
2. After hearing both sides and on perusal of the records, I find that the respondent was engaged in the manufacture of excisable goods Ready Mixed Concrete classified under Chapter 38 of the schedule to the Central Excise Tariff Act 1985. They filed refund claim of Rs. 15,87,176/- for the period October 2013-December 2013 under Rule 5 of Cenvat Credit Rules 2004 read with notification no. 27/2012-CE (NT) Dated 18/06/2012 in respect of un-utilized Cenvat Credit lying in balance in respect of duty paid inputs used in or in relation to the manufacture of find products and exported to SEZ unit. Show Cause Notice dated 09/06/2014 was issued proposing to reject the refund claim. The Adjudicating Authority rejected the refund claim. By the impugned order, the Commissioner (Appeals) allowed the appeal filed by the respondent.
3. The Adjudicating Authority observed that as per Rule 5 of Rules 2004, the meaning of export would be construed taking goods out of India. It has also referred to the explanation to Rule 18 of the Central Excise Rule 2002. It is observed that the clearance of the goods from DTA to SEZ would not amount to export. The Learned Authorized Representative on behalf of the Revenue submits that the issue is covered in favour of the Revenue by decision of Tribunal as under:-
(i) Commissioner of Central Excise, Pune-ii Vs. Quality Screens, 2008 (226) E.L.T. 608(Tri.-Mumbai)
(ii) Commissioner of Central Excise, Thane-i Vs. Tiger Steel Engineering(I)Pvt.Ltd.,2010(59) E.L.T.375(Tri.-Mumbai)
(iii) Jumbo Bags Ltd. Vs. Commissioner of Customs, Chennai, 2011(268) E.L.T. 81 (Tri.-Chennai)
4. The Learned Advocate of behalf of the respondent submits that the issue is no more res integra in view of the recent board circular no. 1001/8/2015-CX 8 dated 28/04/2015 and the recent decisions of Tribunal as under:-
(i) Commissioner of Central Excise and Customs Vs. NBM Industries, 2012(276) E.L.T. 9 (Guj.)
(ii) Global Advertisement Services 2015-TIOL-1072-CESTAT-MUM.
(iii)Shree Shyam Pipes 2015-TIOL-2638-CESTAT-Del.
5. The issue of refund of accumulated Cenvat Credit where goods are cleared from DTA to SEZ, the Board by Circular dated 28/04/2015 clarified as under:-
(3) It can thus be seen that according to the SEZ Act, supply of goods from DTA to the SEZ constitutes export. Further, as per Section 51 of the SEZ Act, the provisions of the SEZ Act shall have riding over effect over provisions of any other law in case of any inconsistency. Section 53 of the SEZ Act makes an SEZ a territory outside the customs territory of India. It is in line of these provisions that Rule 30(1) of the SEZ Rules, 2006 provides that the DTA supplier supplying goods to the SEZ shall clear the goods either under bond or as duty paid goods under claim of rebate on the cover of ARE-1. (4) It was in view of these provisions that the DGEP vide Circulars No. 29/2006-Customs, dated 27/12/2006 [2007(207) E.L.T. (T35) And No. 6/2010, dated 19/03/2010 [2010(251) E.L.T. (T44)] clarified that rebate under rule 18 of the Central Excise Rules, 2002 is admissible for supply of goods made from DTA to SEZ.
The position as explained in there circulars does not change after amendments made vide Notification No. 6/2015-C.E. (N.T.) both dated 01/03/2015, since the definition of export , already given in Rule 18 of Central Excise Rules, 2002 has only been made more explicit by incorporation 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.
6. The Learned Authorized Representative submits that the Circular would be applied in respect of notification no. 6/2015-CE(NT) and 8/2015-CE(NT) both dated 01/03/2015. After perusal of the Board Circular dated 28/04/2015 and the other decision of Tribunal as relied upon, it is clearly held that supply of goods from DTA to SEZ has to be treated as export and entitled to refund of accumulated Cenvat Credit under Rule 5 of Rules, 2004. In view of the above discussions, I do not find any reason to in terfere the Order of the Commissioner (Appeals). Accordingly the appeal filed by the Revenue is rejected.
(Dictated & Pronounced in open Court) (P.K. Das) Member (Judicial) Abhishek 2