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TMI Blog2014 (2) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... s civil works contracts. For the execution of these projects, Simplex procured construction goods from local manufacturers. The local manufacturers paid excise duty to the Revenue on the goods supplied to Simplex, and in turn, passed on the burden of the excuse duty to Simplex. The claim for refund of the TED was thus claimed by Simplex. This claim was made under Paragraph 8.2 of the Foreign Trade Policy ("the policy") of the Central Government, made under the Foreign Trade (Development and Regulation Act), 1992, (hereafter "the Act") which provides various benefits in relation to „deemed exports‟. This refers to those transactions in which goods supplied do not leave the country, but fiscal benefits attached to exports are prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erated in the PIC meeting dated 9th September, 2011. This led to a show-cause notice to Simplex on 28th April, 2012, which ultimately culminated in the two impugned orders. Simplex also challenges the minutes of the two PIC meetings referred to above. 5. Various grounds have been urged by Simplex. It is first argued that the PIC was constituted by an amendment to the policy in 2012, and thus, the PIC does not have the authority to concern itself with the application of the policy before its constitution. The amendment to paragraph 2.3 of the policy, which forms the basis of the legal authority of the PIC, came into existence after the refund of the TED in this case. On this ground, it is argued that the actions of the PIC, which form the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ify the deemed export benefits once such benefits have been approved or granted as per the provisions of the FTR In the absence of power under FTDR Act or FTP, the Respondent No.2 and its subordinates cannot assume quasi-judicial power such as power to redetermine or re-verify under administrative guidelines i.e. Para 7 of the ANF-8 Form. Therefore, Para 7 of the ANF-8 is usurpation of quasi-judicial power by the Respondent No.2 and its subordinates and thus, travels beyond the provisions of the FTDR Act as well as FTP and hence, liable to be struck down." 7. The Court accepted the submission, and held that there is no power to review previous refunds, otherwise than under Section 16 of the FTDR Act. The Court held as follows: "28. We fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to violation of the basic structure of the Constitution of India. The power to legislate is incorporated under Article 246 of the Constitution of India and such power has been conferred on the Parliament and the State Legislature. Moreover, the power to frame Duty Draw Back Rules under the FTDR Act can be legislated by the Central Government only in exercise of power conferred under Section 19 in the manner prescribed under the FTDR Act and the same cannot be delegated to the Respondent no. 2 as expressly prohibited by Section 6(3) of the above Act. 29. Thus, find that any attempt by the executives to legislate without the authority of law should be branded as a colourable device and therefore, the same is in violation of Article 246 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Para 7 of the ANF- 8, the Respondent No.2 is deriving the quasi-judicial power which is beyond the provisions of FTDR Act. We have already pointed out that according to Section 6 of the FTDR Act, the Respondent No.2 or the officer subordinate to him cannot usurp the power under Sections 3, 5, 15 and 19 ... 32. Section 15 of the FTDR Act provides for Appeal and, according to the said section, any person aggrieved by any decision or order made by the Adjudicating Authority may prefer an appeal where the decision or order has been made by the Director General, to the Central Government: or where the decision or order has been made by an officer subordinate to the Director General, to the Director General or to any officer superior to the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court concurs, there can be no review of an earlier refund except in accordance with the provision of Section 16 of the FTDR Act, which only permits the DGFT or the Central Government (in case the original order was by the DGFT) to exercise the power of review. The declaration in paragraph 7 of ANF-8, that Simplex will return any excess duty refunded, cannot eclipse the narrow statutory power to review provided under the Act. Thus, the impugned order of 30th March, 2012, and subsequent recovery proceedings on the basis of this order, exceeds the authority granted by law under the FTDR Act. Taking this view of the matter, the Court does not return any findings as to the legality of the decisions of the PIC, or the legality of paragraph 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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