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3. Being aggrieved, the appellant carried the matter before the Commissioner (Appeals) on the following grounds: -

The said clearances are for the developers of SEZ and hence these shall be treated as exports as per SEZ Act & Rules and no duty is demandable. The Rule 6(6)(i) was amended from 31.12.2008 wherein the developer was also included along with units of SEZ and hence no demand survives after that date and even for the clearances made prior to that date, as this amendment is clarificatory in nature and hence retrospective in nature. Cement supplied by them are not exempted goods as per definition 2(d) of Cenvat Credit Rules, 2004 and hence, there is no requirement of paying any duty for the clearances effected to SEZ, being exports. SEZ Rules have overriding effect over the Central Excise Act. He also cited Circular No. 29/2006-Cus dated 27.12.2006 wherein it was clarified that supplies from DTA to SEZ unit or developers may be treated as Exports. After issue of this Circular, the Notification No. 58/2003-CE date 22.7.2003 is redundant and consequently, the DTA supplies are governed by the provisions of SEZ Act & Rules. Hence, goods being in the nature of export goods, Rule 6 of Cenvat Credit Rules, 2004 does not apply. Hence, there is no requirement of reversal of duty under Rule 6 of Cenvat Credit Rules, 2004. He has also relied upon the case law of Sujana Metal Products decided by this Tribunal. He has also relied upon the decision of the Hon'ble Bombay High Court in the case of Repro India Ltd. Vs. UOI  2009 (235) ELT 614 (Bom). In any case there is no revenue loss because, had they opted to pay the duty they would have got the rebate.

33.?Initially, in order to implement the aforesaid policy, the Customs Act was amended and Chapter XA with Sections 76A to 76H was inserted. Subsequently, the SEZ-Act was enacted and Chapter XA of the Customs Act was deleted.

34.?Section 2 of the SEZ Act is titled definitions. It provides as follows:

 Sub-section (g) of Section 2 [sub-section 2(g)] of the SEZ-Act defines developer. It means a person or a State, which is granted a letter of approval under sub-section (10) of section 3 [Section 3(10)] of the SEZ Act by the Central Government and includes an authority and a co-developer;
 Sub-section (m) of Section 2 [sub-section 2(m)] defines the word export. It means supplying goods, or providing services, from the domestic tariff area to a unit or developer.
 Sub-section (zc) of Section 2 [sub-section 2(zc)] defines the words existing unit and unit. It means, a unit which has been set up by an entrepreneur in a SEZ and includes an existing unit.

35.?Section 51 of the SEZ-Act is titled Act to have overriding effect. It provides that the SEZ-Act will have effect notwithstanding anything contained in any other law for the time being in force or in any other instrument. It has overriding effects over any other law and in case of conflict, the SEZ Act is to prevail.

36.?The SEZ-Act is within the territorial limits of the country; the goods supplied to the unit or to the developer in SEZ do not go outside the country, yet, in view of the definition in Section 2(m) of the SEZ Act, they are to be treated as export.

37.?In the present case, the Assessee had supplied goods from the domestic tariff area to a developer and it is to be treated as an export in view of sub-section 2(m) of the SEZ Act. In case it is treated to be export then all benefits as given to export under any other law should be given.