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312 EXCISE LAW TIMES [ Vol. 373

er vested with the Central Government to issue guidelines under Sections 5 and 6
of the said Act.
56. The power to issue Guidelines under Section 5 of the Act by the
Central Government cannot be in confused with the power to demarcate an area
within a Special Economic Zone under Section 6 of the Act or the power to be
exercised under Section 15(8)(b) of the Act.
57. Further, it is not as if the petitioner was entitled receive goods for its
authorised operation in the proceeding area under 2012 Guidelines dated 21-3-
2012 of the 1st respondent. The said Guideline merely recognised the principal in
the Act that a unit in a Domestic Tariff Area (DTA) could supply goods without
payment of Central Excise Duty in terms of Section 26(1)(c) of the Act read with
Rule 30 of the SEZ Rules, 2006.
58. The 2012 Guidelines dated 21-3-2012 which was withdrawn vide
impugned 2015 Guidelines dated 6-4-2015 has later reintroduced the same con-
tent vide 2016 Guideline dated 16-9-2016 with the modifications. However, mere
withdrawal of the 2012 Guideline vide the impugned Guideline of 2015 did not
alter the position under the Act. Therefore, the impugned Guideline of 2015 is
neither sustainable nor enforceable against the petitioners.
59. Under Section 26(1)(c) of the Act, every Developer and the entre-
preneur is entitled for exemptions, drawbacks and concession from any duty of
Excise, under the Central Excise Act, 1944 or the Central Excise Tariff Act, 1985 or
any other law for the time being in force on goods brought from Domestic Tariff
Area into a Special Economic Zone or Unit, to carry on “authorised operation” by
the Developer or entrepreneur.
60. However, Section 26(1)(c) fails to note that Excise duty is payable
on the manufacture of goods. Excise levy/charge under Section 3 of the Act is
postponed to the time and place of removal under Section 4 of the Central Excise
Act, 1944 read with the Central Excise Rules, 2000.
61. The liability to pay Excise duty is on the manufacturer and not the
buyer though burden of such duty is passed on the to the buyer. There is no pro-
vision under the Central Excise Act, 1944 by virtue of which Excise duty is paya-
ble on reverse charge basis by the buyer. Therefore, interpretation of the provi-
sion of Special Economic Zones Act, 2005 cannot be in direct violation of the pro-
visions of the Central Excise Act, 1944. Duty if any, is payable only by the manu-
facturer.
62. Further, the exemption under Section 26(1) is subject to the re-
striction in Section 26(2) of the Act. The phrase used in Section 26(2), is “the Cen-
tral Government may prescribe the manner in which, and the terms and condi-
tions subject to which, the exemptions, concessions, drawback or other benefits
shall be granted to the Developer or entrepreneur under sub-section (1)”.
63. Rule 30 of the SEZ Rules, 2006 prescribes the manner in which and
the terms and conditions subject to which the benefit can be granted to a Devel-
oper or an entrepreneur while procuring goods from the Domestic Tariff Area.
Rule 30 of the SEZ Rules, 2006 reads as under :
“30. Procedure for procurements from the Domestic Tariff Area. -
“(1) The Domestic Tariff Area supplier supplying goods to a Unit or Devel-
oper 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

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