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TMI Blog2018 (10) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure to be followed for making the claim. Claim of recovery of duty drawback - delay in initiating procedure for recoveries - Held that:- This issue can also be seen in light of gross delay and latches on the part of the Department and the observations made by this Court in the case of Asahi Songwon Colors Limited. While therefore keeping the question of the Department’s stand of non eligibility of duty draw back on oil purchases made from the distributors or dealers of the domestic oil companies and not directly from the depots open, this petition is allowed by setting aside the impugned order. - R/SPECIAL CIVIL APPLICATION No. 12808 of 2018 - - - Dated:- 5-10-2018 - MR AKIL KURESHI AND MR B.N. KARIA, JJ. For The Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purchases made from the DTA units which were utilized for manufacture of goods sold in the local market; and [ii] the petitioners claim of duty drawback on purchase of furnace oil on the ground that the same was not purchased from the depots of the domestic oil companies, but from its dealers. Eventually, the respondentauthorities issued a show cause notice on 8th February 2017 and sought to recover both the amounts paid to the petitioner many years back. The petitioners resisted the proceeding on several grounds; including the ground of limitation. The authority passed the impugned order dated 16th July 2018 confirming the demands. Hence, this petition. Learned counsel for the petitioners submitted that [i] the objection of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further pointed out that as per the Government of India Circular dated 5th December 2005, only the fuel procured from the depots of domestic oil companies would qualify for duty drawback. In case of petitioners, the procurement was not from the depots of the domestic oil companies. Material on the record suggests that the show cause notice made demand of recovery of Central Sales tax reimbursed to the petitioners between April to June 2007. Likewise, the demand of recovery of duty drawback also pertains to two quarters viz ., April to June 2007 and October to December 2007. For such purposes, show cause notice was issued on 8th July 2017 ie. , nearly ten years later. In case of Asahi Songwon Colours Limited [Supra], this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f goods being manufactured in India is satisfied. In plain terms, therefore, the Foreign Trade Policy 20042009 did not limit the benefit of CST reimbursement to a EOU on purchases made only from a DTA unit. 19. If this be the conclusion, the immediate question that would arise is, could the authorities have restricted the benefit only in case of procurement from a DTA unit through the procedure laid down for implementation of Foreign Trade Policy? We have noticed that the Director General of Foreign Trade in terms of section 6 of the Act has certain delegated powers which would include powers to frame such procedures. Subsection (3) of section 6 however, excludes the delegation of such powers to those contained under sections 3, 5, 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anted to the DGFT under the FTDR Act to legislate either directly or by way of incorporation by reference. It is now a settled law that the separation of power between the legislature and executive forms part of the basic structure of the Constitution of India and any attempts by the executives to legislate without appropriate authority under the law would amount 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that para.2 of this Appendix restricts the CST reimbursement on purchases made by an EOU from a DTA unit. However, this restriction in our opinion would run counter to the terms of FTP itself and ultra vires the powers of the Director General of Foreign Trade. The title of the Appendix itself provides that it is a procedure to be followed for reimbursement of Central Sales Tax. Para.1 further clarifies that the procedure given in the said annexure shall be applicable for reimbursement of CST. There is little doubt therefore, that Appendix 14II aimed to lay down the procedure for claiming the benefit. In any case, such procedure could not have restricted the benefit by excluding the purchases from certain source which exclusion did not flow ..... X X X X Extracts X X X X X X X X Extracts X X X X
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