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316 EXCISE LAW TIMES [ Vol. 373

under the Foreign Trade Policy in terms of Rule 23 of Special Economic Zone
Rules, 2006 but was also entitled to clear the goods under bond or claim rebate of
tax/duty paid by it in terms of Rule 30 of the aforesaid Rules.
66. That apart procurement of HSD by the petitioner from IOCL did
not qualify as an import within the meaning of Section 2(o) of the Special Eco-
nomic Zones Act, 2006. Therefore, there cannot be a demand for Customs duty
and interest thereon on the Excise duty foregone by IOCL at the time of clearance
of HSD from its factory/refinery to the petitioner under Sections 28 or 28AA of
the Customs Act, 1962.
67. Though, in a slightly different context, the Honourable Supreme
Court In WPIL Industries v. Commissioner of Central Excise, 2005 (181) E.L.T. 359
(S.C.) while dealing with scope of Notification No. 46/94-C.E., dated 1-3-1994
and Notification No. 95/94-C.E., dated 25-4-1994 issued under Section 5A of the
Central Excise Act, 1944, held that “In view of the consistent policy of the Government
of exempting parts of power driven pumps utilised by the factory within the factory
premises, it could not be said that while issuing Notification No. 44/96 of 1-3-1994, the
exemption in respect of the said item which was operative was either withdrawn or re-
voked. The action was taken only with the view to rescinding several notifications and by
issuing a composite notification. The policy remained as it was and in view of the de-
mands being made by the Department, a representation was made by the industries and
on being satisfied, the central government issued a clarificatory Notification No. 95/94 on
25-4-19 94. It was held to be not a new notification granting exemption for the 1st time
in respect of parts of power driven pumps to be used in the factory of manufacture of
pumps but clarified the position and made the position explicit which was implicit”.
68. The Hon’ble Supreme Court there held that the notification was
clarificatory and was therefore retrospective nature in the light of the decision of
the Honourable Supreme Court in Collector of Central Excise v. Woodcraft Products
Limited (1995) 3 SCC 454 = 1995 (77) E.L.T. 23 (S.C.).
69. Further, Rule 47(5) of the Special Economic Zones Rules, 2006 has
been inserted vide GSR 772(E), dated 5-8-2016 with effect from 8-8-2016. As per
the above provision, “Refund, Demand, Adjudication, Review and Appeal with
Regard to Matters Relating to Authorised Operations under the Special Econom-
ic Zones Act, 2005, transactions, and goods and services related thereto, shall be
made only by the jurisdictional Customs and Central Excise Authorities in ac-
cordance with the relevant provisions contained in the Customs Act, 1962, the
Central Excise Act, 1944 and the Finance Act, 1994 and the rules made thereun-
der or notification issued thereunder”.
70. The impugned show cause notice is also liable to be declared as
without jurisdiction. Even if, it is assumed that the clearance of HSD Oil was
without the authority of law by the DTA supplier (IOCL). Only the jurisdictional
officer concerned under the Central Excise Act, 1944 within whose jurisdiction
IOCL is registered is competent to issue a show cause notice to recover the Excise
duty under Section 11A of the Central Excise Act, 1944.
71. Therefore, on this count also the impugned show cause notice is-
sued by the 2nd respondent is unsustainable and the demand proposed is liable
to be quashed.
72. As such the Development Commissioner appointed under Section
11 of the Special Economic Zones Act, 2005 is neither a “proper officer” within

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