Page 174 - ELT_1_1st April 2020_Vol 372_Part

60 EXCISE LAW TIMES [ Vol. 372

2020 (372) E.L.T. 60 (Guj.)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Harsha Devani and A.S. Supehia, JJ.
ADANI POWER LTD.
Versus
UNION OF INDIA
R/Special Civil Application No. 2233 of 2016, decided on 28-6-2019
1
Special Economic Zone - Electricity generation therein - Removal to
DTA - Exemption - Petitioner pleading that relief from payment of Customs
duty granted for period 26-6-2009 to 6-9-2010 vide earlier decision of High
Court in their earlier writ petition reported at 2015 (330) E.L.T. 883 (Guj.),
which was also upheld by Apex Court, be extended for period beyond 6-9-2010
with consequent relief of refund of Customs duty paid by them - HELD : A
conscious decision was taken in earlier writ petition to grant limited relief for
period mentioned ibid by quashing proviso to Notification No. 25/2010-Cus.,
which denied exemption to electricity of Tariff Item 2716 00 00 of Customs
Tariff Act, 1975 removed from Special Economic Zone to DTA or non-
processing areas of SEZs - Relief was granted for limited period for which no-
tification ibid, which had amended parent Notification No. 21/2002-Cus., was
given retrospective effect - Said decision was based on correct interpretation of
law as it then existed - During aforesaid period, Rule 47(3) of SEZ Rules, 2006
was in operation and imposing Customs duty on electricity sold in DTA
amounted to double taxation inasmuch as SEZ unit had already suffered duty
on inputs/raw materials/consumables used in generation of electricity - How-
ever, with effect from 6-9-2010, aforesaid SEZ Rule had been kept in abeyance
and hence there was no question of double taxation - Rather if relief was
granted beyond this date, it would have amounted to double benefit to peti-
tioner - Even at that time, after pronouncement of decision ibid, petitioner had
moved a ‘Note for Speaking to the Minutes’ seeking rectification of said deci-
sion for extending relief beyond aforesaid period which after arguments was
dismissed as not pressed - Further, during pendency of earlier petition, said
Notification No. 21/2002-Cus. was rescinded and replaced with new Notifica-
tion No. 12/2012-Cus. which was never challenged by petitioner - In view of
above, relief beyond aforesaid period not admissible and no consequent relief
of refund of Customs duty paid, can be granted - Writ petition not sustainable
- Article 226 of Constitution of India. [paras 18, 23, 25]
Writ Order - Declaratory relief therefrom - Delay in filing petition -
Decision of High Court in earlier writ petition has already considered vires of
Notification No. 21/2002-Cus. as amended by clause 60 of Finance Bill, 2010
and Notification No. 91/2010-Cus. and granted limited relief upto 6-9-2010 by
quashing proviso to said notification - Therefore, question of giving a declara-
tory relief for further period qua those notifications based upon the findings
recorded in said decision does not arise - As regards subsequent Notifications
No. 12/2012-Cus. and No. 26/2012-Cus., these were issued during pendency of
previous petition which were not challenged at relevant time - Even in this
________________________________________________________________________
1 In appeal against this order, notice was issued by Supreme Court in 2020 (372) E.L.T. A20
(S.C.).
EXCISE LAW TIMES  1st April 2020  222