Custom, Excise & Service Tax Tribunal
Commr. Of Central Excise, Kol.Iii vs M/S Ramsarup Utpadak on 8 May, 2017
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex.Appeal No.458/11
Arising out of O/A No.55/Kol.III/2011 dated 01.03.2011 passed by Commr. (Appeals) of Central Excise, Kolkata.
Commr. of Central Excise, Kol.III
APPELLANT(S)
VERSUS
M/s Ramsarup Utpadak
RESPONDENT (S)
APPEARANCE Shri S. Dasgupta, Dy.Commr. (A.R.) for the Revenue Shri N. K. Chowdury, Adv. for the Respondent (s) CORAM:
SHRI P. K. CHOUDHARY, HONBLE JUDICIAL MEMBER DATE OF HEARING/DATE OF DECISION : 08.05.2017 ORDER NO.F/75858/2017 Per Shri P. K. Choudhary :
Revenue has filed this appeal against the sanction of rebate of duty by the Adjudicating Authority. The ld.Commissioner (Appeals) vide Order-in-Appeal No. 55/Kol.III/2011 dated 01.03.2011, rejected the Revenues Appeal. Hence, the present appeal before the Tribunal.
2. Heard both sides and perused the appeal records.
3. The ld.Counsel for the respondent raised a preliminary objection that the appeal is not maintainable in view of Clause (b) of provisio to Section 35 (1) of the Central Excise Act, 1944.
4. I find that the present issue is covered by the decision of the Larger Bench of this Tribunal in the case of Sai Wardha Power Ltd. Vs. Commr. of Central Excise, Nagpur : 2016 (332) ELT 529 (Tri.-LB), wherein the Larger Bench has held as under :
8.?A striking contention of the ld. AR which appeals to us is that the only statutory provision for grant of rebate lies in Section 11B read with Rule 18 of Central Excise Rules which is for goods exported out of the country. If the supplies to SEZ is not treated as such export, there being no other statutory provisions for grant of rebate under Rule 18, the undisputable consequence and conclusion would be that rebate cannot be sanctioned at all in case of supplies to SEZ from DTA units. Certainly such conclusion would result in a chaotic situation and render all circulars and Rules under SEZ Act ineffective and without jurisdiction as far as grant of rebate on goods supplied to SEZ is concerned. The contra argument is that Section 51 of the SEZ Act would have overriding effect and the rebate can be sanctioned in terms of the provisions of Section 26 of the SEZ Act. We note that Section 26 only provides for exemption of excise duties of goods brought from DTA to SEZ. It does not provide for rebate of duty on goods exported out of the country. Therefore there is no conflict or inconsistency between the provisions of the SEZ Act and Central Excise Act so as to invoke the provisions of Section 51 of the SEZ Act. Our view is strengthened by the Honble High Court judgment in the case of Essar Steel Ltd. which held that Section 51 of the SEZ Act, 2005 providing that the Act would have overriding effect does not justify adoption of a different definition in the Act for the purposes of another statute. A non obstante clause only enables the provisions of the Act containing it to prevail over the provisions of another enactment in case of any conflict in the operation of the Act containing the non obstante clause. In other words, if the provision/s of both the enactments apply in a given case and there is a conflict, the provisions of the Act containing the non obstante clause would ordinarily prevail. In the present case, the movement of goods from the Domestic Tariff Area into the Special Economic Zone is treated as an export under the SEZ Act, 2005, which does not contain any provision for levy of export duty on the same. On the other hand, export duty is levied under the Customs Act, 1962 on export of goods from India to a place outside India and the said Act does not contemplate levy of duty on movement of goods from the Domestic Tariff Area to the Special Economic Zone. Therefore, there is no conflict in applying the respective definitions of export in the two enactments for the purposes of both the Acts and therefore, the non obstante clause cannot be applied or invoked at all.
9.?In view of the above analysis, it is our considered view that in respect of rebate on goods supplied from DTA to SEZ within India, the appeals would not lie to the Appellate Tribunal under clause (b) of proviso to Section 35(1) of the Central Excise Act.
5. In view of the above decision of the Larger Bench, the appeal filed by the Revenue is dismissed as not maintainable before the Tribunal. (Dictated and pronounced in the open Court) Sd/ (P. K. CHOUDHARY) MEMBER (JUDICIAL) mm 8 Ex.Appeal No.458/11