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266 EXCISE LAW TIMES [ Vol. 372

ignore the documents supplied by the assessee before the Revenue which
we have already mentioned earlier. It is not a case of the Revenue that the
assessee has not received the FOB price at all. That is clear from the BRCs.
Therefore, the FOB price is supported amply by the BRCs with which no
fault is found. Once that is clear, there will be no question to hold that the
FOB is inflated.
10. As per the policy also the credit has to be linked with the FOB price.
Again we cannot ignore the fact that the PMV is also correctly fixed and is
within the permissible limits i.e. 150% of AR4 value. The market value is
fixed at Rs. 52.50. That has also been found to be in order by the Tribunal.
Therefore, we accept the finding of the Tribunal in this behalf and reject the
contention of the Learned Counsel for the Revenue.
11. It was lastly contended that the matter is covered by the decision in
Om Prakash Bhatia’s case (supra). This was clearly against drawback scheme
and not DEPB credit. We have carefully seen the judgment. We do not find
that on the basis of the factual scenario therein it applies in any manner to
the present controversy. There the factor of over-invoicing was found estab-
lished. In the present case on the factual aspect also the FOB price could not
be said to be inflated. In our opinion the aforementioned judgment would
be of no consequence and help to the Revenue.”
17. We are of the view that the impugned order is not sustainable and,
therefore, the same is being set aside.
18. The other appeal which proposed personal penalty on Shri Birendra
Kumar Tiwari is also not sustainable in view of our findings indicated above.
Accordingly we set aside the penalty imposed on him as well and allow the ap-
peal.
19. Accordingly, both the appeals are allowed.
(Pronounced on 23 October, 2019)
_______

2020 (372) E.L.T. 266 (Tri. - Hyd.)

IN THE CESTAT, REGIONAL BENCH, HYDERABAD
[COURT NO. I]
Shri P. Venkata Subba Rao, Member (T)
ADANI POWER LTD.
Versus
COMMR. OF C.T. - RANGAREDDY - GST, TELANGANA
Final Order Nos. A/31018-31020/2019, dated 5-11-2019 in Appeal
Nos. E/30513, 30603 & 30898/2018
SEZ - Refund of Central Excise duty paid by DTA supplier and col-
lected from SEZ developer/unit on goods supplied to them for their authorized
operations - Since supplies to SEZ developer/unit treated at par with exports
and Special Economic Zones Rules, 2006 providing mechanism only for such
supplies under bond or undertaking and no mechanism provided thereunder
or Central Excise Rules, 2002 for refund of duty on goods procured from DTA,
EXCISE LAW TIMES  15th April 2020  236