Page 177 - ELT_1_1st April 2020_Vol 372_Part

2020 ] ADANI POWER LTD. v. UNION OF INDIA 63

der or direction restricting the respondents, their servants/agents
from levying or collecting duty by whatever name at the rate of 4
paise per unit or any other rate by giving effect to Notification No.
9/2016-Cus., dated 16-2-2016, in view of the law laid down by this
Hon’ble Court in its judgment dated 15-7-2015, delivered in case of
the petitioner Company itself, i.e. writ petition being Special Civil
Application No. 3142 of 2010;
[C] Your Lordships may be pleased to issue a writ of mandamus or
any other writ in the nature of mandamus directing the appropriate
authority to refund the amount collected on account of duty on
electricity removed from SEZ to DTA in view of the judgment dated
15-7-2015 of this Hon’ble Court in petitioner’s own case i.e. Special
Civil Application No. 3142 of 2010;
[D] Your Lordships may be pleased to issue a writ of certiorari or a
writ in the nature of certiorari or any other order or direction calling
for the records of the case and after going into legality and proprie-
ty thereof, quash and set aside the letter dated 8-10-2015 (Annexure-
A) and letter dated 16-11-2015 (Annexure-J) hereto.”
4. The petitioner No. 1, a company is incorporated under the provisions
of the Companies Act, 1956 and is, inter alia, engaged in the business of generat-
ing, transmitting and selling electrical power. The company has set up a Thermal
Power Plant, at Mundra within the Special Economic Zone (hereinafter referred
to as “the SEZ”), which is the subject matter of the present petition. Mundra Spe-
cial Economic Zone has been set up as Mundra Port and Special Economic Zone
Ltd. (hereinafter referred to as “the MPSEZ”), wherein the MPSEZ is the devel-
oper as defined under Section 2(g) of the Special Economic Zones Act, 2005
(hereinafter referred to as “the SEZ Act”). Mundra SEZ is a multi-product SEZ
and electricity is required for both processing and non-processing areas. The pe-
titioner company, therefore, joined as co-developer to set up the Mundra Plant,
which is a coal based Thermal Power Plant. This project was initially planned to
generate 1320 MW which was increased to 2640 MW and ultimately to 5200 MW.
4.1 The petitioner company imported as well as indigenously procured
capital goods without payment of duty, Customs and Excise, as the case may be,
as provided under the provisions of the SEZ Act and the Special Economic Zones
Rules, 2006 (hereinafter referred to as “the SEZ Rules”). The petitioner company,
inter alia, removes/sells electricity outside the SEZ to Gujarat Urja Vikas Nigam
Ltd. (GUVNL), a Distribution Company/Licensee of the Government of Gujarat
and Distribution Companies of State of Haryana and others.
4.2 By virtue of a parent Notification No. 21/2002-Cus., dated 1-3-2002,
electrical energy when imported into India was exempt from whole of the Cus-
toms duty in terms of Serial No. 573 of the Table annexed to the parent notifica-
tion. On 27-2-2010, the Central Government, by virtue of clause 60 of the Finance
Bill, 2010 (2nd Schedule thereto) amended Notification No. 21/2002-Cus., dated
1-3-2002, by providing for customs duty at the rate of 16% on electricity energy
removed from a Special Economic Zone to Domestic Tariff Area or non-
processing areas of Special Economic Zones. However, electricity imported from
foreign countries continued to be fully exempted, that is, chargeable to nil duty
when imported from foreign countries.
4.3 The Central Government, in exercise of powers conferred under
sub-section (1) of Section 25 of the Customs Act, 1962, issued Notification No.
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