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TMI Blog2014 (4) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... the deemed export benefit received in the form of refund of Terminal Excise Duty paid by the petitioner on steel and cement supplied, along with 15% interest, in default whereof, the petitioner has been threatened with action under the Foreign Trade (Development and Regulation) Act, 1992. 3. On 13th of July 2007, Damodar Valley Corporation issued a letter of intent to the petitioner for supply of plant and equipment including mandatory spares for the Thermal Power Project at Koderma. Similar letter of intent was issued to the petitioner on 14th of August, 2007 for supply of plant and equipment, including mandatory spares, for setting up Durgapur Thermal Power Station. 4. On 11 August, 2001, agreements were entered into by and between ONGC Tripura Company Limited and the petitioner for supply of plant and equipment, civil construction materials, maintenance tools, tackles and commissioning spares for design and engineering, manufacturing, fabrication and assembly of a gas based combined cycle power plant at Udaipur in Tripura. 5. The petitioners supplied the items mentioned above to the respective power projects, including cement and steel. The petitioner filed cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ext, reference may be made to Paragraphs 8.4.4(i) and (iv) of the Foreign Trade Policy set out hereinbelow. "8.4.4(i) : In respect of supplies made under paragraphs 8.2(d), (f) and (g) of FTP, supplier shall be entitled to benefits listed in Paragraphs 8.3(a), (b) and (c), whichever is applicable....... 8.4.4(iv) : Supply of capital goods and spares upto 10% of FOR value of capital goods to power projects in terms of paragraph 8.2(g), shall be entitled for deemed export benefits provided the ICB procedures have been followed at Independent Power Producer (IPP)/Engineering and Procurement Contract (EPC) stage. Benefit of deemed exports shall also be available for renovation/modernization of power plants. Supplier shall be eligible for benefits listed in paragraph 8.3(a) and (b) of FTP, whichever is applicable. However, supply of goods required for setting up of any mega power project as specified in S. No. 400 of DoR Notification No. 21/2002-Customs, dated 1-3-2002, as amended, shall be eligible for deemed export benefits as mentioned in Paragraph 8.3(a), (b) and (c) of FTP, whichever is applicable, if such mega power project complies with the threshold generation capacity specifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W or more, located in the States other than those specified in clause (a) above; or NIL NIL 86 (c) an inter-state hydel power plant of a capacity of 350 MW or more, located in the States of Jammu and Kashmir, Sikkim, Arunachal Pradesh, Assam, Meghalaya, Manipur, Mizoram, Nagaland and Tripura; or (d) an inter-state hydel power plant of a capacity of 500 MW or more, located in States other than those specified in Clause (c) above. Heading No. 9801 of the Customs Tariff is as under : Tariff Item Description of goods Unit Rate of Duty Standard Preferential 1 2 3 4 5 9801 All items of machinery including prime movers, instruments, apparatus and appliances, control gear and transmission equipment, auxiliary equipment (including those required for research and development purposes, testing and quality control), as well as all components (whether finished or not) or raw materials for the manufacture of the aforesaid items and their components, required for the initial setting up of a unit, or the substantial expansion of an existing unit, of a specified : (1) industrial plant, (2) irrigation project, (3)&em ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Trade (DGFT). Under Section 6(2) DGFT is responsible for carrying out the Policy. Section 6(3) empowers the Central Government to direct, by order, that all powers exercisable by it under the Act, except powers under Sections 3, 5, 15, 16 and 19, may also be exercised, in specified cases and subject to specified conditions, by DGFT or officers subordinate to him as may be specified in the Order. Therefore, the power to amend Foreign Trade Policy cannot be delegated and has to be exercised by the Central Government in the manner specified in Section 5 of the Foreign Trade Act. 20. In exercise of powers under Section 5, the Central Government notified the Foreign Trade Policy 2004-09 which was in force till March 31, 2009 and was replaced thereafter, in a similar manner, by the Foreign Trade Policy 2009-14, on and from April 1, 2009. Foreign Trade Policy 2009-14 has been amended in like manner from time to time, the last of such amendment being effected on June 5, 2012. 21. Paragraph 2.3 of the Foreign Trade Policy provides that if any question or doubt arises in respect of the interpretation of any provision contained in the Foreign Trade Policy the same shall be referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed either on the reasons stated therein or on the grounds available on record and cannot be supplemented by affidavits or submissions made subsequently. In the premises the petitioner is entitled to the reliefs sought for in the writ petition. 25. The power projects are of the nature specified in Notification No. 21/2002 (Serial No. 400). The respondents have not been able to specifically deny that the conditions laid down in Paragraph 8.4.4(iv) are duly satisfied. Benefit under Paragraph 8.3(c) cannot, therefore, be denied. The requisite project authority certificates and mega power project certificates, as required under Sl. No. 400 of Notification No. 21/2002, were duly provided by the respective project authorities. 26. In respect of steel and cement supplied as deemed exports, as per Para 8.3(c), between June, 2008 and September, 2010, the petitioner filed applications before the respondent authorities for refund of Terminal Excise Duty. Refunds were granted upon due approval by the DGFT between August, 2008 and March, 2011. 27. As argued by Dr. Chakraborty, the certificates issued by the project authorities duly certified that steel and cement were required ..... X X X X Extracts X X X X X X X X Extracts X X X X
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