Custom, Excise & Service Tax Tribunal
Spirax Marshall Pvt. Ltd vs Commissioner Of Central Excise, Pune-I on 7 December, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. IV Appeal No. E/2042/10-Mum [Arising out of Order-in-Appeal No. PI/RKS/135/2010 dated 31/08/2010 passed by the Commissioner of Central Excise (Appeals), Pune-I] For approval and signature: Honble Mr. Ramesh Nair, Member (Judicial) =======================================================
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 :
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?
=======================================================
Spirax Marshall Pvt. Ltd.
:
Appellant
VS
Commissioner of Central Excise, Pune-I
:
Respondent
Appearance
Shri Mehul Jivani, C.A. for the Appellant
Shri N.N. Prabhudesai, Supdt. (AR) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 07/12/2015
Date of decision: 07/12/2015
ORDER NO.
Per : Ramesh Nair
The appeal is directed against Order-in-Appeal No. PI/RKS/135/2010 dated 31/08/2010 passed by the Commissioner of Central Excise (Appeals), Pune-I, wherein the Ld. Commissioner upheld the Order-in-Original No. P-I/Divn. IV/Reb/57/2010 dated 01/04/2010 and dismiss the appeal filed by the appellant.
2. The fact of the case is that the appellant have supplied the goods to the SEZ Developers without payment of duty and under the cover ARE-1treating the supply as export. Subsequently the Jurisdictional Superintendent vide letter dated 25/05/2009 informed the appellant that the supply made to the SEZ Developers were not exempted from payment of Central Excise duty and also directed them to pay the duty along with interest. In reply of the said letter, the appellant paid the excise duty along with interest. Subsequently the appellant filed the refund claim in respect of the duty and interest paid towards the goods supplied to the SEZ Developers. The sanctioning authority has rejected the refund claim on the ground that the supply to the SEZ Developer was included in the rule 6(6)(i) of Cenvat Credit Rules, 2004 vide Notification No. 50/2008 CE (NT) dated 31-12-2008. In the present case since the supply to the SEZ Developer is prior to 31-12-2008. It cannot be treated as export and liable to pay 10% of value of goods. Accordingly refund of said paid amount was rejected vide order dated 01-04-2010. The appeal against the said original order, the Commissioner (Appeals) rejected the appeal. Hence the appellant is before me.
3. Shri Mehul Jivani, Ld. C.A. appearing on behalf of the appellant submits that there is no dispute that supply of goods was made to the SEZ Developers by following the procedure which is applicable for export such as clearance under LVT, filing ARE-1 etc. On insistence of the department they paid the amount alongwith interest. He further submits that in terms of various judgments, now it has been settled that even prior to Notification No. 50/2008 CE (NT) dated 31-12-2008, such supplies held to be export. In this regard he placed reliance on the judgment of Sujana Metal Products Ltd. Vs Commissioner of C.Ex., Hyderabad [2011 (273) ELT 112 (Tri.- Bang.)] which has been upheld by the Honble Andhra Pradesh High Court in Central Excise Appeal No. 40 of 2012 vide order dated 2-7-2013. He also placed reliance on following judgments on the same issue:
Siemens Ltd. Vs Commr of C.Ex., Navi Mumbai [2015 (321) ELT 493 (Tri.-Mum.) M/s. Dee Development Engineering Ltd. Vs Commr of C.Ex., Faridabad [2013-TIOL-831-CESTAT-DEL] He submits that in view of above judgments issue is not res-integra and the supply made to the SEZ Developers, is export of goods and accordingly the duty paid by them required to be refund alongwith interest.
4. On other hand, Shri N.N. Prabhudesai, Supdt. (AR) appearing on behalf of the Respondent reiterates the findings of the impugned order.
5. I have carefully considered the submissions made by both the sides.
6. The fact is not under dispute that supplies to the SEZ Developer were made by following the procedure as applicable to the clearance of goods for export. The lower authority has rejected the claim only on the ground that Notification No. 50/2008 CE (NT) dated 31-12-2008 is not retrospective, therefore supply made to the SEZ Developers cannot be export. The very same issue has been settled in various judgments cited by the Ld. counsel in particular, Honble Andhra Pradesh High Court also passed the judgment in the case of Sujana Metal Products Ltd. (supra).
6.1 Following of the ratio of the above cited judgments, I am of the considered view that supply made to the SEZ Developers is an export and no duty is payable. Therefore, the duty paid by the appellant is required to be refunded by the department to the appellant. I, therefore, set aside the impugned order and allow the appeal, with consequential relief, if any, in accordance with law.
(Dictated in court) Ramesh Nair Member (Judicial) saifi 4 Appeal No. E/2042/10-Mum