Page 185 - ELT_1_1st April 2020_Vol 372_Part

2020 ] ADANI POWER LTD. v. UNION OF INDIA 71

ers. The attention of the Court was invited to Instruction 67, dated 28th October,
2010 issued by the Government of India, Ministry of Commerce and Industry
(SEZ Section) to all Development Commissioners, to point out that in order to
implement the Customs Notification No. 91/2010, dated 6-9-2010, it had been
decided that the operation of Rule 47(3) of the SEZ Rules, 2006 is kept in abey-
ance with effect from 6-9-2010 till further order. The attention of the Court was
also invited to the communication dated 4-9-2015 of the petitioner addressed to
the Specified Officer providing details regarding duty benefit availed by APSEZ
for O&M of M/s. Adani Power Plant, to point out that the petitioner has availed
of duty benefit to the tune of Rs. 963.94 crores, whereas the duty paid by it is on-
ly to the tune of Rs. 458.50 crores. It was submitted that if the petitioner is per-
mitted to compete with the DTA industries, it would tilt the balance in favour of
the petitioner. It was submitted that insofar as the contention with regard to cre-
ating level playing field is concerned, the difference in price would kill the do-
mestic industry. According to the Learned Counsel, if the petitioner is granted
complete exemption, it makes it non-viable for local industries.
6.3 Referring to paragraph 63 of the judgment and order dated 15-7-
2015, it was pointed out that what has been held is that the Customs duty at the
rate of 16% ad valorem levied by notification dated 27-2-2010 could not be im-
posed retrospectively with effect from 26-6-2009 and that the petitioner is entitled
for exemption from payment of Customs duty for the period 26-6-2009 to 15-9-
2010 on the electricity cleared to DTA from SEZ. It was submitted that thus, the
Court has set aside the retrospective charging of Customs duty and has granted
relief covering a specific period only and hence, levy for a period other than 26-6-
2009 to 15-9-2010 is permissible to the authority. Referring to the reliefs prayed
for in the earlier petition, it was pointed out that the petitioner had challenged
Notification No. 21/2002, dated 1st March, 2002 (Sr. No. 573) as amended by
clause 60 of Finance Bill, 2010 read with Notification No. 25/2010-Cus., dated
27th February, 2010; however, the Court has held only the proviso to Notification
No. 25/2010-Cus., dated 27th February, 2010 to be ultra vires.
1 6.3 It was submitted that vide Notification No. 25/2010-Cus., dated
27-2-2010, the parent Notification No. 21/2002-Cus., dated 1-3-2002 was amend-
ed. The effect of the amendment was that Entry No. 573 was split up/bifurcated
into two entries, viz., 573 and 573A. Referring to the footnote of the said notifica-
tion, it was pointed out that the entry was substituted (with effect from 26-6-
2009) by clause 60 read with the Second Schedule to the Finance Bill, 2010 with
validating and saving provisions, namely, the date when the unit was estab-
lished. It was pointed out that two notifications came to be issued on the same
day, viz., 27-2-2010, one bifurcating the entry and the other providing that goods
falling under Tariff Item 2716 00 00 when imported into India shall be exempted
from the whole of the duty specified in the said First Schedule whereas the pro-
viso thereto provided that nothing contained in that notification shall apply to
electric energy falling under Tariff Item 2716 00 00 removed from a Special Eco-
nomic Zone to the Domestic Tariff Area or non-processing areas of Special Eco-
nomic Zones.
6.4 It was contended that from the observations in paragraph 61 of the
judgment of the Division Bench, it is evident that the same would not govern
anything beyond 15-9-2010. According to the Learned Advocate, the Court found
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1 Paragraph number as per official text.
EXCISE LAW TIMES  1st April 2020  233