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TMI Blog2014 (12) TMI 1054X X X X Extracts X X X X X X X X Extracts X X X X ..... is permissible. The eligibility for refund, therefore, would be in terms of these provisions and the unit has to apply for such refund - authorities in this case appear to have proceeded to make an order adverse to the petitioner and proceeded to hold that the petitioner was disentitled to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that “refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund”. This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case. Court also is unable to see the reason why the respondents were of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner. 3. The second respondent stated in terms of Para 6.11(2)(II) of the Foreign Trade Policy, read with CBEC Circular No.851/9/2007 dated 03.05.2007 supply of goods to EOU is exempted for payment of Terminal Excise Duty, hence, the supplier was not required to pay any duty while removing the goods for supply the same to EOU. Further, it was stated that in terms of Para 6.2(b) of the Foreign Trade Policy, EOU may import goods from DTA unit without payment of duties hence EOU was not required to pay duty. Further, it was stated that refund of CENVAT credit provisions are available under the Excise Rule and CENVAT Rules hence refund of such credit by DGFT does not arise. Therefore, the Committee opined that no policy interpre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a Committee constituted for the purpose of interpretation of the policy guidelines. The said request made by the petitioner came to be disposed of by the second respondent by the impugned order. 5. The petitioner has challenged the impugned proceedings by contending that the supplies made to EOUs are construed as Deemed Exports in terms of Para 8.2(b) of FTP and all benefits accrued as a consequence of Deemed Exports are available to the petitioner. It has further contended that in terms of Para 8.3(c) of FTP, exemption from terminal excise duty is applicable where supplies are made against ICB and in all other cases, refund of terminal excise duty is applicable and in other words, except for supplies made against ICB, in all other c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond respondent held that the supplier is not required to pay any duty while removing the goods to EOU. 6. The learned counsel for the petitioner reiterated the stand taken in the affidavit filed in support of the writ petition and submitted that based on the impugned decision, in respect of another assessee viz., Kandoi Metal Powders Manufacturing Company, which claimed a similar benefit, was rejected. This was challenged on the identical grounds raised by the petitioner herein and the Hon'ble Division Bench of the Delhi High Court, in the case of Kandoi Metal Powders Manufacturing Company Private Limited V. Union of India and others reported in 2013-TIOL-230-HC-DEL-EXIM, allowed the writ petition and while doing so, took note of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perusing the materials placed on record, it is seen that an identical set of facts, the Division Bench of the Delhi High Court took a decision in favour of the manufacturer. In fact, in the said case arose out of a decision taken pursuant to the resolution dated 04.12.2012 which is impugned in this writ petition. Therefore, the cause of action in the case before the Delhi High Court was the impugned resolution. Therefore, the decision rendered by the Delhi High Court binds the respondents and the Delhi High Court quoted with the approval in the decision of the Division Bench of the Calcutta High Court in JDGFT V. IFGL Refractories Limited (cited supra). At this stage, it would be beneficial to refer to the operative portion of the Judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o seem to have suggested that the petitioner should approach the DGFT for appropriate relief or clarification. Neither of the authorities dispute that the petitioner supplied goods to the EOU at the relevant time. Its entitlement, therefore, was defined in terms of the existing policy, i.e. Refund in terms of paras 8.2, 8.3, 8.4 and 8.5 of the 2009 Policy as discussed above. That a subsequent amendment was made to the existing regime which in effect liberalized the position further and exempted payment of TED altogether cannot surely be a reason for denying the scheme for refund of payment already made. The Court also is unable to see the reason why the respondents were of the view that refund claim or benefit under the CENVAT regime under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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