Page 179 - ELT_1_1st April 2020_Vol 372_Part

2020 ] ADANI POWER LTD. v. UNION OF INDIA 65

4.11 By a letter dated 18-8-2015 addressed to the respondent No. 4, the
petitioner company stated that since the rate of Customs duty on electricity im-
ported from a place outside India was nil, no Customs duty could be levied on
electricity removed by it from SEZ to DTA in terms of the ratio laid down in the
above referred judgment and that henceforth, it would not pay the Customs duty
on electricity removed by it to DTA. In response to the said letter, the fourth re-
spondent, by a letter dated 8-10-2015 addressed to the petitioner company stated
that the petitioner company was entitled to exemption from payment of Customs
duty for the period from 26-6-2009 to 15-9-2010 and that, it was required to make
payment of duty at the rate prescribed under Notification No. 21/2002-Cus., dat-
ed 1-3-2002 as amended by Notification No. 91/2010-Cus., dated 6-9-2010 and
Notification No. 26/2012-Cus., dated 18-4-2012 amending Entry No. 145 of Noti-
fication No. 12/2012-Cus., dated 17-3-2012. The petitioner company was also di-
rected to make payment of Customs duty.
4.13 The petitioner-company, thereafter, addressed another letter dated
29-10-2015 to the fourth respondent explaining the legal position and contending
that it was not liable to pay Customs duty and would initiate action for refund of
Customs duty paid during the past period.
4.14 Vide letter dated 16-11-2015, the fourth respondent expressed his
disagreement with the contents of the letter dated 29-10-2015 addressed by the
petitioner company and requested for the details mentioned therein. In the
meantime, the petitioner company had applied for consequential refund on 9-12-
2015, but in view of the stand taken by the respondents vide letter dated 8-10-
2015, the petitioner company reserved its right to seek appropriate relief in re-
spect of refund application made by it.
4.15 Being aggrieved by the stand taken by the respondents, the peti-
tioners have filed the present petition seeking the reliefs noted hereinabove.
5. Mr. Kamal Trivedi, Senior Advocate, Learned Counsel with Mr.
Uday Joshi, Learned Advocate for M/s. Trivedi and Gupta, Learned Advocates
for the petitioners, submitted that Section 12 of the Customs Act is a charging
section, which provides for “Levy of Customs duty on goods imported into
and/or exported from India”, which means, the goods which are brought from a
territory outside India into India and/or taken out from India to a territory out-
side India. It was submitted that in view thereof, removal of electricity from the
SEZ to the DTA would not attract customs duty under the Customs Act. It was
submitted that Section 25 of the Customs Act empowers the Central Government
to grant exemption from customs duty leviable under the provisions of Section
12 of that Act, therefore, once the removal of electricity from SEZ to DTA does
not attract customs duty, no question arises of granting or not granting exemp-
tion from Customs duty on removal of electricity from SEZ to DTA under the
provisions of Section 25 of the Customs Act. Reference was made to Section 30 of
the SEZ Act, to submit that the same is the charging section which creates a level
playing field between the units located in foreign countries on one hand and the
units located in the SEZ on the other. It was submitted that Section 30 of the SEZ
Act seeks to charge the goods removed from SEZ to DTA with customs duty,
including countervailing duty etc. under the Customs Tariff Act, 1975 as leviable
on such goods when imported.
5.1 It was submitted that in the present case, the Central Government,
in exercise of powers conferred under Section 25 of the Customs Act, granted

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