2020 (4) TMI 83 - HC - Customs

Maintainability of petition - alternative statutory remedy - Refund of terminal excise duty - international competitive bidding - Deemed Exports - rejection of claim on the ground that the commodity in question is entitled for exemption from duty and thus only an exemption may be claimed and not the relief of refund - HELD THAT - There are several situation were duel reliefs are extended to an assessee both of an exemption as well as of refund. In a case where both reliefs are available the option to select the relief of its choice vests with the assessee. Maintainability of petition - Revenue also argues that that the writ petition is not maintainable in the light of the fact that the impugned order is subject to a revision in terms of Regulation 16 of the Foreign Trade (Development and Regulation Act) 1992 - HELD THAT - Since the issue arising for consideration is squarely covered by the judgment of M/S. LENOVO (INDIA) PVT. LTD. VERSUS UNION OF INDIA THE DIRECTOR GENERAL OF FOREIGN TRADE THE JOINT DIRECTOR OF FOREIGN TRADE THE COMMISSIONER OF CENTRAL EXCISE 2016 (11) TMI 623 - MADRAS HIGH COURT where it was held that respondent is directed to process the refund claim in accordance with 2009 Policy by taking into consideration the petitioner s refund Application and pass appropriate orders within a period of three months - there are no reason to relegate the petitioner to alternate statutory remedy. Petition allowed - decided in favor of petitioner.

Summary

Issues:
Challenge to order rejecting refund of terminal excise duty paid.

Analysis:
The petitioner challenged an order rejecting its claim for refund of terminal excise duty paid, confirming the decision of the Zonal Joint Director General of Foreign Trade. The petitioner was awarded a contract for the supply of goods in connection with petroleum operations, conducted through international competitive bidding, as per Foreign Trade Policy provisions. The policy allows zero customs duty on goods permitted for import by the Ministry of Finance. The petitioner provided a certificate from the Project Authority certifying compliance with the policy. Both original and appellate authorities acknowledged the supply method via international competitive bidding. However, the claim was rejected citing lack of provision under the Foreign Trade Policy.

The court noted that deemed export benefits are available when the Ministry of Finance permits zero customs duty on imports for goods supplied through international competitive bidding. The authorities rejected the claim based on duty exemption for the commodity, arguing only exemption could be claimed, not a refund. The court disagreed, citing precedents allowing both exemption and refund reliefs, with the choice resting with the assessee. The court referenced a Supreme Court judgment supporting this principle.

The Revenue contended the writ petition was not maintainable due to potential revision under the Foreign Trade Act. However, the court found the issue covered by established legal precedents and allowed the petition, ordering the refund within four weeks. The court emphasized no costs were to be imposed. The judgment highlighted consistent application of legal principles in similar cases, supporting the decision to grant the refund without resorting to alternate statutory remedies.