Page 121 - ELT_1st August 2020_Vol 373_Part 3

2020 ] DLF UTILITIES LTD. v. UNION OF INDIA 303

16-9-2016 should be allowed retrospectively. Under these circumstances, it is
therefore submitted that even if the impugned 2015 Guidelines in valid, it is lia-
ble to be read down. Consequently, the demand proposed in the impugned show
cause notice is liable to be quashed.
14. Learned Counsel for the petitioner relied on the following case
laws :
(i) GMR Aerospace Engineering Ltd. v. UOI - 2019-VIL-489-TEL = 2019
(31) G.S.T.L. 596 (A.P.).
(ii) Mahavir Prasad & Ors. - (1999) 8 SCC 266.
(iii) Jindal Stainless Limited v. UOI - 2017 (51) S.T.R. 130 (Del.)
15. The respondents have filed a detailed counter wherein it has been
stated that exemptions, concessions and drawback incentives etc. as provided for
in Section 26(1) of the SEZ Act, 2005 are subject to conditions prescribed. It is
submitted that the Central Government may prescribe the manner in which, and
the terms and conditions subject to which, the exemption, concession, drawback
or other benefits shall be granted to the developer or entrepreneur under sub-
section (1).
16. It is submitted that for the aforesaid purpose the Special Economic
Zone Rules, 2006 (SEZ Rules, 2006) has been framed by the Central Government.
It is submitted that as per Rule 27(3) of the aforesaid Rules, “no duty free materi-
al shall be permitted for operation and maintenance of infrastructure and other
facilities set up in “non-processing area” and since by virtue of the impugned
guidelines power plants situated in “Processing Areas” were directed to be de-
marcated as “Non-Processing Areas”, question of the petitioner claiming exemp-
tion from payment of Excise duty on HSD Oil procured from Domestic Tariff
Area cannot be countenanced.
17. I have considered the arguments advanced on behalf of the peti-
tioner and the respondent. The petitioner is co-developer of DLF Info City De-
velopers (Chennai) Ltd.
18. Initially, the petitioner was given an approval on 17-6-2008 for set-
ting up a co-generation plant by installing and commissioning gas turbine based
power generating sets by setting up an energy centre to provide electricity as a
single source and to generate chilled water using vapour absorption machine.
19. By another letter dated 17-6-2008, the petitioner was allowed to set
up 48 MW capacity power plant in the “Non-Processing Area” of the IT Facility
infrastructure being set up by the Developer of Special Economic Zone namely
DLF Info City Developers (Chennai) Ltd.
20. It mandated that procedure prescribed in the Special Economic
Zones Rules, 2006 must be followed for availing the benefit of any exemption,
drawback or concession.
21. By another approval dated 7-10-2008, the petitioner was informed
that the Board of Approval of 1st respondent in its meeting held on 22-9-2008
had approved for modification in the authorised operations to be carried out by
the petitioner.
22. By virtue of the aforesaid communication, the capacity of produc-
tion was altered to 48 MW from 84 MW. The location of the power plant was
demarcated within the “Non Processing Area” of Special Economic Zone which
is now being altered in the impugned Guideline.

EXCISE LAW TIMES  1st August 2020  121