Page 215 - ELT_1st June 2020_VOL 372_Part 5th

2020 ] IN RE : GMP TECHNICAL SOLUTIONS (P) LTD. 749

cation of the rebate claim from the concerned Range Officer, the Adjudicating
authority vide Order-in-Original No. 164-SML9(R)/AC/MGG/2010, dated 30-9-
2010 rejected the rebate claim on the ground that the applicant had cleared the
goods on ARE-2 to a unit in SEZ under claim of drawback and could not produce
the disclaimer certificate from M/s. CIPLA despite sufficient opportunities being
afforded to them. Being aggrieved by the said order, the applicant filed an appeal
before the Commissioner (Appeals) who, vide the impugned Order-in-Appeal
rejected the applicant’s appeal on the same ground.
3. Personal hearings were granted in this case on 9-8-2019, 26-8-2019,
13-9-2019 and 30-10-2019. Sh. Joy Kumar, Advocate, appeared for the applicant.
He produced a letter from Specified Officer (Customs), ISEZ, Pithampur stating
that no drawback claim has been sanctioned to M/s. CIPLA against the im-
pugned ARE-2s. No one appeared for the respondent. However Para-wise com-
ments from the respondent have been received which have been taken on record.
4. There is no dispute regarding supply of fabricated building materials
to the SEZ unit and the use of the duty paid inputs in manufacture of fabricated
building materials. The original adjudicating authority has rejected the appli-
cant’s rebate claim for the sole reason that the applicant did not file a Disclaimer
Certificate from the recipient SEZ unit that they had not claimed drawback on
the impugned goods. The Commissioner (Appeals) has also endorsed the deci-
sion of the Assistant Commissioner by observing that the applicant has not com-
plied with the said fundamental conditions and has upheld the Assistant Com-
missioner’s order.
5. The Government observes that Para 5 of Circular No. 29/2006-Cus.,
dated 27-12-2006 issued under F.No. DGEP/SEZ/331/2006 clearly stipulates that
“Supplies from DTA to SEZ shall be exempt from payment of any Central Excise duty
under Rule 19 of Central Excise Rules, 2002. Similarly, such supplies shall be eligible for
claim of rebateunder Rule 18 of Central Excise Rules, 2002 subject to the fulfillment of
conditions laid there under. The provisions relating to exports under Central Excise Act,
1944 and rules made thereunder may be applied, mutatis mutandis, in case of procure-
ment by SEZ units & SEZ developer from DTA for their authorized operations.” Fur-
ther Rule 18 of Central Excise Rules, 2002 reads as follows :
“Rule 18. Rebate of duty. - Where any goods are exported, the Central
Government may, by notification, grant rebate of duty paid on such excisa-
ble goods or duty paid on materials used in the manufacture or processing
of such goods and the rebate shall be subject to such conditions or limita-
tions, if any, and fulfilment of such procedure, as may be specified in the
notification.”
6. The applicant has supplied capital goods without payment of duty
as the unit has claimed exemption under Notification No. 49-50/2003-C.E. (N.T.),
dated 10-6-2003, which have been installed as fixtures by the SEZ unit. There was
no requirement of any disclaimer from the SEZ unit in this case since the goods supplied
are in the nature of capital goods on which no duty drawback is admissible.
Moreover drawback is not admissible to a SEZ unit in terms of General
Notes 8 (d) of C.B.I. & C. Notification No. 103/2008-Cus. (N.T.), dated 29-8-2008
which superseded Notification No. 26/2003-Cus. (N.T.), dated 1-4-2003.
7. Hence the adjudicating authority and Commissioner (Appeals)’s
EXCISE LAW TIMES  1st June 2020  215