Clearance to SEZ Developers - Amendment Retrospective
AS per Rule 6(6) of the CENVAT Credit Rules, 2004, the provisions of sub-rule (1), (2), (3) and (4) were not applicable in case the excisable goods removed without payment of duty cleared to a unit in SEZ. [Exempted and dutiable goods - obligations]
This was amended by Notification No. 50/2008 - CENT dated 31.12.2008 to stipulate that these provisions will not apply to goods cleared to a unit in SEZ or to a developer of SEZ for their authorized operations. [Developer was added]
So, the confusion about clearances to SEZ developers was sought to be put to an end. But things don't end like that in Revenue. Board by a private letter in F.No. dated 7/1/2009, clarified that the amendment was prospective and would be applicable only from the date of the notification. So, the period prior to 31st December 2008, was a happy issue for dispute.
In a stay application reported by us in 2009-TIOL-1096-CESTAT-BANG., the Bangalore CESTAT held that the amendment was retrospective. But the Delhi Bench headed by the President did not agree in 2009-TIOL-1567-CESTAT-DEL and referred the matter to a Larger Bench. The Larger Bench headed by the same President held that a reference cannot be made to the Larger Bench based on a stay order and so the Larger Bench returned the matter to the Division Bench. - 2010-TIOL-1841-CESTAT-DEL-LB.
Any way much murky water has flowed under the tricky bridge and this matter has almost reached finality with the Tribunal and a couple of High Courts holding that the notification was clarificatory and so had retrospective effect.
These are some of the judgements:
1. UOI vs SAIL -
2. Sujana Metal Products -
3. Ultratech Cement -
But the Revenue is not prepared to accept these verdicts or reason and have appealed to the Supreme Court.
In a recent judgement, the Karnataka High Court also held that the amendment has retrospective effect. Obviously, they will appeal against this decision also.