2015 (3) TMI 626 - HC - Central Excise

Refund of Terminal Excise Duty - Held that - Petitioner has not availed of exemption from TED. Therefore, quite logically, the refund of TED, cannot be denied - other objection taken in the impugned order, is that, there is a deficiency in the application, in as much as, the declaration made by NTPC Ltd. was not on its letterhead; an objection which is completely untenable. The document, which is appended at pages 49-50 of the paper book, clearly shows that the said document bears the stamp of the NTPC Ltd. The document declares that Cenvat Credit/Rebate under the Central Excise Rules has not been availed by NTPC Ltd. Therefore, this objection cannot stand in the way of the petitioner getting refund in the matter. - impugned order is set aside. The respondents are directed to refund the TED to the petitioner. - Decided in favour of assessee.

Summary

Issues involved:
1. Refund of Terminal Excise Duty (TED) under the Central Excise Act, 1944.
2. Interpretation of paragraph 8.3(c) of the Foreign Trade Policy 2009-2014 (FTP).
3. Maintainability of appeal under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992 (FTDRA).
4. Deficiency in the application for refund.
5. Adjudicating officer's compliance with court orders.

Detailed Analysis:

1. The judgment revolves around the issue of refund of Terminal Excise Duty (TED) under the Central Excise Act, 1944. The petitioner had supplied boiler components to a company under International Competitive Bidding (ICB) and paid TED. The petitioner sought a refund of TED as it did not seek exemption under the Act. The respondents resisted the refund citing paragraph 8.3(c) of the Foreign Trade Policy 2009-2014, claiming that since the supplies were deemed exports, the petitioner should have applied for exemption. The Foreign Trade Development Officer rejected the refund claim due to deficiencies in the application.

2. The interpretation of paragraph 8.3(c) of the FTP was crucial in determining the eligibility for the refund. The respondents argued that the petitioner's failure to apply for exemption rendered the refund claim unsustainable. However, the court disagreed, emphasizing that since the petitioner did not avail of the exemption, the refund of TED could not be denied. The court also dismissed objections regarding deficiencies in the application, stating that such objections were untenable, especially when the essential declaration was present.

3. The issue of maintainability of an appeal under Section 15 of the FTDRA was raised. The court clarified that the impugned order did not fall within the ambit of Section 13 of the FTDRA, making the objection to maintainability untenable. The court also distinguished a previous order cited by the respondents, emphasizing that the impugned order was not subject to the same provisions. The court highlighted that the petitioner was entitled to appeal against the order.

4. The judgment addressed the deficiency in the application for refund, particularly the objection regarding the declaration by the company not being on its letterhead. The court found this objection baseless as the document contained the necessary information and stamp, fulfilling the requirements for the refund. This aspect further supported the petitioner's entitlement to the refund of TED.

5. Lastly, the judgment emphasized the importance of adjudicating officers complying with court orders and acting in accordance with legal procedures. The court set aside the impugned order, directing the respondents to refund the TED to the petitioner. Additionally, the court awarded costs to the petitioner due to the respondents' actions, which necessitated the petitioner to approach the court for the second time. The judgment concluded by disposing of the petition and related applications.