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A20 EXCISE LAW TIMES [ Vol. 372

The Calcutta High Court in its impugned order had not decided on mer-
its the issue of utilization of accumulated credit for other products on abolishing
of money credit scheme but had remanded matter to department to decide issue
after initiating proper proceedings keeping in mind various decisions in this re-
gard.
REPRESENTED BY : Mr. S. Ganesh, Sr. Advocate, M/s. Khaitan & Co.,
AOR, Mr. Ayush A. Mehrotra and Ms. Vanita Bhar-
gava, Advocates, for the Petitioner.

SEZ — Electrical energy cleared from SEZ to DTA or
non-processing areas of zone, whether liable to duty
after 6-9-2010?
The Supreme Court Bench comprising Hon’ble Dr. Justice D.Y. Chandra-
chud and Hon’ble Mr. Justice Hrishikesh Roy on 25-11-2019 issued notice in Pe-
tition for Special Leave to Appeal (C) No. 24729 of 2019 filed by Adani Power
Ltd. against the Judgment and Order dated 28-6-2019 of Gujarat High Court in
R/Special Civil Application No. 2233 of 2016 as reported in 2020 (372) E.L.T. 60
(Guj.) (Adani Power Ltd. v. Union of India). While issuing the notice, the Supreme
Court passed the following order :
“Issue notice returnable in four weeks.”
The Gujarat High Court in its impugned order had held that relief from
payment of Customs duty on removal of Electricity from SEZ to DTA granted for
period 26-6-2009 to 6-9-2010 given vide earlier decision of High Court in party’s
earlier writ petition reported at 2015 (330) E.L.T. 883 (Guj.), which was also up-
held by Apex Court, was a conscious decision so far as restriction of period was
concerned. Relief based on correct interpretation of law was granted for limited
period ibid i.e. period for which Notification ibid, which had amended parent
Notification No. 21/2002-Cus., was given retrospective effect. During aforesaid
period, Rule 47(3) of Special Economic Zone 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 materi-
als/consumables used in generation of electricity. However, w.e.f. 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 petitioner. After pronouncement of earlier deci-
sion, petitioner had moved a ‘Note for Speaking to the Minutes’ seeking rectifica-
tion of said decision for extending relief beyond aforesaid period which after ar-
guments was dismissed as not pressed. As regards subsequent Notifications No.
12/2012-Cus. and No. 26/2012-Cus., these were issued during pendency of pre-
vious petition which were not challenged at relevant time. Even in this belated
petition, these notifications have not been challenged per se but only declaratory
relief based on previous judgment sought which cannot be granted.
REPRESENTED BY : Mr. Arvind Datar & Mr. Vikaram Nankani,
Sr. Advocates, Mr. Mahesh Agarwal, Mr. Rishi
Agrawala, Mr. Anshuman Srivastava, Mr. Rohan
Talwar and Mr. E.C. Agrawala, Advocates, for the
Petitioner.

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