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TMI Blog2018 (9) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... Oriented Units ('EOU' for short) during the period from June, 2009 to October, 2009 in terms of Para 8.3 of the Foreign Trade Policy 2009-14 ('FTP', for short). 2. Petitioner is a Private Limited Company engaged in the business of manufacture and sale of computer systems having its head office at Bengaluru and the manufacturing unit at Puducherry. During the period June, 2009 to October, 2009, the petitioner supplied computer systems to EOU on payment of TED. The supply of goods to EOU is deemed export in terms of [Para] 8.2(b) of FTP and supplier is entitled to claim refund of TED from the Regional authority in terms of [Para] 8.3(c) of FTP. Accordingly, the petitioner filed refund application dated 31-12-2009 before respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3)/2009-2014, dated 18-4-2013 to provide such categories of supply which are exempt ab initio will not be eligible to receive refund of TED and the amendment to the policy is only with effect from the date of notification. It is submitted that clarification given in the Circular dated 15-3-2013 is contrary to the interpretation to the provisions of FTP and is, therefore, ultra vires the policy. It is, however, with effect from the date of notification and cannot be given effect retrospectively since relevant period in the present case pertains to the period prior to the issuance of the Notification dated 18-4-2013. In support of his contentions, Learned Counsel placed reliance on the following decisions : 1. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As of DGFT/Offices of Development Commissioners of SEZ, because such supplies are ab initio exempted from payment of excise duty. Placing reliance on the judgment of the High Court of Judicature at Bombay in Sandoz Private Limited v. The Union of India (W.P. No. 2927/2015 dated 1-8-2016), 2016 (341) E.L.T. 22 (Bom.) it was submitted that amendment to [Para] 8.3 of FTP is clarificatory and is accordingly retroactive in nature. 5. Heard the Learned Counsel appearing for the parties and perused the material on record. 6. Benefits for deemed export before the amendment in terms of paras 8.3 and 8.4 of FTP reads as follows : "8.3 Benefits for Deemed Exports Deemed exports shall be eligible for any/all of following benefits in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following terms : "8.5 Eligibility for refund of terminal excise duty/drawback Supply of goods will be eligible for refund of terminal excise duty in terms of Para 8.3(c) of FTP, provided recipient of goods does not avail CENVAT credit/rebate on such goods. A declaration to this effect, in Annexure-II of ANF 8, from recipient of goods, shall be submitted by applicant. Similarly, supplies will be eligible for deemed export drawback in terms of para 8.3(b) of FTP of Central Excise Duty paid on inputs/components, provided CENVAT credit/rebate has not been availed of such duty paid by supplier of goods. A declaration to this effect, in Annexure-III of ANF 8, from supplier of goods, shall be submitted by applicant. Such supplies shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has been considered and distinguished placing reliance on the Division Bench Ruling of the Delhi High Court in the case of Kandoi Metal Powders Mfg. Co. Pvt. Ltd., supra, refund claim of the assessee has been considered and a direction is issued to the Authorities to process the refund claim in accordance with the 2009 Policy. 9. The judgment referred to by the respondent Nos. 1 to 4 in the case of Sandoz Private Limited, supra, is challenged before the Hon'ble Apex Court and the matter is pending consideration. However, it is true that the Bombay High Court has differed from the view expressed by the Delhi High Court in Kandoi Metal Powders Mfg. Co. Pvt. Ltd., supra in coming to the conclusion that the policy circular dated 15-3-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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