Page 222 - ELT_2nd_15th April 2020_Vol 372_Part

268 EXCISE LAW TIMES [ Vol. 372

admitted into the SEZ and the bill of export copy is endorsed by the authorized
officer. However, where the unit or the developer has not claimed any exemp-
tion, drawback or concession at the time the goods are brought into the SEZ, the
goods procured from the DTA can be brought into the SEZ on the basis of in-
voice or a transport document issued by the DTA supplier. As per Rule 25 of the
SEZ Rules a developer/entrepreneur is liable to refund the exemption, drawback
or concession claimed by it under the Customs Act, Central Excise Act, etc., if the
goods have not been used for the authorized operations. In their case, they have
procured the goods on the strength of normal commercial invoice and the goods
were cleared by their suppliers after paying appropriate duty.
4. Thereafter, they filed refund applications under Section 11B of the
Central Excise Act which were rejected by the authorities. Hence, these appeals.
5. Regarding the refund application not having been filed with the ju-
risdictional Central Excise Officer as per Rule 47(5) of SEZ Rules, he would sub-
mit that this Rule pertains to sales in DTA by the SEZ and it does not pertain to
procurement of goods by the SEZ unit/developer. As per Rule 47(5), refund,
demand adjudication, review and appeal, with regard to matters relating to au-
thorized operations under SEZ Act, 2005, transactions and goods and services
related thereto, shall be made by the jurisdictional Customs & Central Excise au-
thorities in accordance with the relevant provisions contained in the Customs
Act, 1962, Central Excise Act, 1944 and the Finance Act, 1994 and the rules made
thereunder or notifications issued thereunder. He would submit that this refer-
ence to the jurisdictional excise officer or customs officer having jurisdiction over
the SEZ unit for the purpose of clearance of goods by the SEZ units to the DTA.
In the present case, the goods were cleared by their supplier in Hyderabad to the
SEZ unit. Therefore, the appropriate officer before whom the application for re-
fund can be filed is the jurisdictional officer of Central Excise in Hyderabad. He
would submit that in their own case, CESTAT-Kolkata held so in Final Order No.
F/76332-76339/2017, dated 30-7-2017 - 2018 (364) E.L.T. 319 (Tribunal). He
would submit that in this order the Tribunal has held that a refund under Section
11B can be filed not just by the assessee by any person who suffers Central Excise
duty which is not payable as per the law. Therefore, he would urge that they are
entitled to refund and the impugned orders may be set aside and they may be
allowed refund. He further submits that they are also entitled to interest at ap-
propriate rate from the date of filing of the refund claims till the date of payment
of the refund amounts.
6. Learned departmental representative, on the other hand, reiterates
the findings of the lower authorities and asserts that there is no provision under
which the SEZ unit/developer can claim refund of duties paid by their supplier.
He draws the attention of the Bench to Rule 30 of the SEZ Rules which reads as
follows :
“30. Procedure for procurements from the Domestic Tariff Area. - (1)
The Domestic Tariff Area supplier supplying goods to a Unit or Developer
shall clear the goods, as in the case of exports, either under bond or as duty
paid goods under claim of rebate on the cover of ARE-1 referred to in Noti-
fication Number 42/2001-Central Excise (NT) dated the 26th June, 2001 in

EXCISE LAW TIMES  15th April 2020  238