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2020 ] ADANI POWER LTD. v. UNION OF INDIA 69

movement of the goods outside the territorial waters of India. Reference is
made to the decision of the Apex Court in the case of Union of India v. Rajin-
dra Dyeing and Printing Mills Limited, (2004) 10 SCC 187.
41.1.3 In the absence of any amendment of the definitions of the terms
“Export” and “India” in the Customs Act, 1962, or any amendment in the
charging section i.e. Section 12 or insertion of a charging provision contem-
plating movement of goods from the Domestic Tariff Area to the Special
Economic Zone as a taxable event entailing a levy of Export Duty as in the
case of export, the levy of Export Duty cannot be justified under the provi-
sions of the Customs Act, 1962.”
5.9 It was submitted that once the removal of goods from SEZ to DTA,
does not attract the customs duty under the provisions of the Customs Act, then
in that case, there arises no question of granting or not granting exemption under
the provisions of Section 25 of the Customs Act, which empowers the Central
Government to grant exemption from Customs duty leviable under the provi-
sions of Section 12 of the Customs Act. It was contended that in view of the
above, removal of electricity from SEZ to DTA would be neither import nor ex-
port under the provisions of the Customs Act and consequently, would not at-
tract customs duty under the provisions of the Customs Act. It is under these
circumstances, that a deeming fiction is provided under Section 30 of the SEZ
Act, as if such removal from SEZ to DTA is chargeable to duties of Customs,
where applicable, as leviable on such goods when imported from outside India
under the Customs Act. It was submitted that the words “where applicable” as
used in Section 30(a) of the SEZ Act, would only have to be read for anti-
dumping duty, countervailing duty and safeguard duties as the said duties are
not levied on each and every transaction, but on certain transactions covered un-
der the Customs Tariff Act, 1985. This is because of the peculiar language of Sec-
tion 9A(2A) of the Customs Tariff Act and Section 5A of the Central Excise Act,
which is different from Section 25 of the Customs Act. These words, therefore,
would not apply to basic customs duty. It was submitted that in the present case,
the countervailing duty/additional duty is not leviable on electricity by virtue of
zero duty under the Central Excise Tariff, and not by virtue of any notification
issued under Section 5A of the Central Excise Act, 1944.
5.10 It was submitted that this Court, in the above referred decision,
has held that the expression “leviable” should be read to mean “payable” and
that once the petitioner is held by the above decision to be not liable to pay the
duty, it is not permissible for the respondents, by intermittently issuing similar
notifications, to say that the petitioners are liable to pay duty. It was submitted
that once this Court has quashed the provision, the foundation has gone and the
result would be that as long as there is no requirement of payment of duty on
importation of like goods, the petitioner is not required to pay duty on removal
of similar goods from SEZ to DTA. It was submitted that in view of the above
decision, the respondents cannot re-invite the position prior to the decision by
issuing other notifications virtually demanding duty at different rates on remov-
al from SEZ to DTA, which amounts to negation of the decision of this Court in
the case of the assessee itself. It was emphatically argued that the earlier decision
has to be followed with full vigour and that in view of the decision, the notifica-
tions are non est and the petitioners are not liable to pay any duty as there is no
payability on import of electricity.
5.11 The Learned Counsel submitted that Section 30 of the SEZ Act is
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