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2015 (12) TMI 873 - HC - Central ExciseRefund of Terminal Excise Duty (TED), which was erroneously paid to the excise department. - goods were exempted absolutely vide Section 5A - Held that - Central Govt. in exercise of the powers conferred by Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 (FTDR Act) issued Export and Import Policy 2004-2009. The Chapter 8 of the said policy provides for deemed exports specified therein. - A similar question came up for consideration before Hon ble Division Bench of this Court 2015 (8) TMI 292 - DELHI HIGH COURT Union of India & Ors. vs. Alstom India Ltd. . In the said case, writ petition 2015 (7) TMI 393 - DELHI HIGH COURT was filed by M/s. Alstom India Ltd. claiming refund of TED which was rejected by the Director General of Foreign Trade, Ministry of Commerce and Industry. The said petition was disposed of by learned Single Judge on 11.02.2015. Thereafter, an appeal being LPA No.192/2015 was preferred. The Hon ble Division Bench after considering the relevant provisions of the Act and the policy directed DGFT to consider the application of the writ petitioner for refund in terms of the provisions of the FTP, 2009-2014 and pass an appropriate order in accordance with law. - Petition disposed of.
Issues:
1. Refund of Terminal Excise Duty (TED) under the Foreign Trade Policy (FTP). 2. Eligibility of the petitioner for refund based on contractual obligations. 3. Consideration of exemption under Section 5A of the Central Excise Act, 1944. 4. Application of the Export and Import Policy 2004-2009 for deemed exports. 5. Comparison with a similar case regarding refund of TED. Issue 1: Refund of Terminal Excise Duty (TED) under the Foreign Trade Policy (FTP): The petitioner sought directions for the refund of TED amounting to a specific sum along with interest under the FTP. The petitioner also requested reconsideration of the application for TED refund by the Policy Relaxation Committee (PRC) and a personal hearing. The court directed the Directorate General of Foreign Trade (DGFT) to consider the petitioner's refund application in accordance with the FTP, 2004-2009, and previous refund orders issued to other entities. Issue 2: Eligibility of the petitioner for refund based on contractual obligations: The petitioner, a public limited company engaged in manufacturing PVC wires and cables, erroneously paid TED during supplies for a project. Despite being appointed as a sub-contractor by the main contractor, the petitioner's refund application was initially rejected due to a contractual technicality. The court emphasized the need for a fair consideration of the petitioner's eligibility for TED refund based on the contractual arrangements and vendor lists. Issue 3: Consideration of exemption under Section 5A of the Central Excise Act, 1944: The court examined Section 5A of the Central Excise Act, 1944, which empowers the Central Government to grant exemptions subject to specified conditions. It was noted that goods supplied under international competitive bidding are exempted from excise duty as per a relevant notification. This exemption provision was crucial in evaluating the petitioner's claim for TED refund. Issue 4: Application of the Export and Import Policy 2004-2009 for deemed exports: The court highlighted the relevance of the Export and Import Policy 2004-2009, particularly Chapter 8 concerning deemed exports. The petitioner's case required a thorough assessment under this policy framework to determine the applicability of TED refund in the context of the supplies made for the project. Issue 5: Comparison with a similar case regarding refund of TED: Reference was made to a similar case titled 'Union of India & Ors. vs. Alstom India Ltd.' where a refund of TED was sought and eventually directed by the court. This comparison underscored the need for consistency in applying legal provisions and policies related to TED refunds. Both parties agreed to a similar direction being issued in the present case, emphasizing the importance of uniformity in such matters. In conclusion, the court disposed of the petition by directing the DGFT to reconsider the petitioner's refund application, ensuring a fair and expedited decision within a specified timeframe. The judgment emphasized adherence to legal provisions, policy frameworks, and past precedents to facilitate a just resolution of the TED refund issue.
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