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TMI Blog2018 (10) TMI 711X X X X Extracts X X X X X X X X Extracts X X X X ..... out in 8.2). Benefit of deemed export under para 8.3 i.e. advance authorization [clause (a)], deemed export drawback [clause (b)] or exemption from TED in case of supplies made against International Competitive Bidding (ICB) or in other case of refund of TED. Clause (c) accrues to the concerned party i.e. supplier to EOU/STP. In this case, the petitioner s primary claim is that it is the supplier to such EOUs and that such supplies were made before 15.03.2013. This clear aspect has been completely overlooked and lost sight off by the respondent DGFT, which appears to initially reject the claim on the ground that the benefit the petitioners seeks entitlement of, was inadmissible because Central Excise benefit could be claimed. The petitioner s claim has to succeed - petition allowed. - W.P.(C) 10526/2017 - - - Dated:- 8-10-2018 - MR. S. RAVINDRA BHAT AND MR. A.K. CHAWLA JJ. Petitioner Through: Mr. R.K. Krishnan, Adv. Respondents Through: Mr. Roshan Lal goel and Ms. Anju Gupta, Adv. for UOI/R-1. Mr. Harpreet Singh, Sr. Sanding Counsel with Ms. Suhani Mathur, Adv. for R-2 R-3 S.RAVINDRA BHAT, J. (ORAL) 1. The petitioner seeks a direction to consider its a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016. The petitioner unsuccessfully approached the CESTAT, which in its Chandigarh Bench, rejected the appeal. 3. It is contended by Mr. R. Krishnan, Advocate on behalf of the petitioner that the claim made by the excise authorities was by way of an alternative as the DGFT primarily was responsible for the refund of TED paid. On the contention of DGFT, excise officials were approached for refund. He relied upon the judgment of this Court in Kandoi Metal Powders Mfg. Co. Pvt . Ltd. vs. Union Of India, (2014) 302 ELT 209 (Del), where after noticing the various provisions of the Foreign Trade Policy 2009-14 framed under the Foreign Trade Development and Regulations Act, 1992, the Court held, as follows : 7. The eligibility for refund is provided by para 8.5 in 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 el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 the Central Excise Act or the other statutory schemes framed under it is available. In this Court's opinion, that regime operates in its own terms and is independent of the rights and liabilities of the petitioner and the respondents under the import-export policies framed under the 1992 Act. This Court notices that its reasoning is fortified by the decision of the Division Bench of the Calcutta High Court in JDGFT v. IFGL Refractories Limited, 2002 (143) ELT 294 (Cal). There, the Court ruled that once the supply of goods falls within the category of deemed export, the unit would be entitled to refund of TED. 10. In view of the above discussion, the impugned orders are hereby quashed. The respondents are hereby directed to process and pass appropriate orders in accordance with the 2009 policy in respect of the petitioner's refund claims made through its applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eking benefit regarding the TED. It is no where mentioned that the exporter may first opt for the payment of TED and thereafter he may seek refund of the same. TED exemption or refund is to be taken as provided for in FTP 2009-14, by reading various provisions of FTP 2009-14, in a harmonious manner. 13. It is also admitted that Para 8.3(c) extends the benefits under deemed exports for the supplies which qualify as deemed exports. The qualified Deemed Exports are undoubtedly eligible for the corresponding benefits, as applicable under Para 8.3 (c), one of the benefits is the TED. Para 8.3 (c) of FTP 2009-14, covers both TED refund as well as exemption from TED for different types of cases. TED refund is allowed where TED exemption is not available. 5. The DGFT argued that by virtue of circular no.16 of 15.03.2013 the provisions of FTP have been in existence. To clarify, it is stated that the policy circular did not introduce any amendment or new provision. The DGFT states that Chapter 6 of the FTP contains provisions to set up EOUs, import and export by them as well as allied governing the provisions. Para 6.2(b) of FTP 2009-14 clearly provides that the goods procured by an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of goods to any project or purpose in respect of which the MoF, by a notification, permits import of such goods at zero customs duty; (g) Supply of goods to power projects and refineries not covered in (f) above; (h) Supply of marine freight containers by 100% EOU (Domestic freight containers manufacturers) provided said containers are exported out of India within 6 months or such further period as permitted by customs; (i) Supply to projects funded by UN Agencies; and (j) Supply of goods to nuclear power projects through competitive bidding as opposed to ICB. Benefits of deemed exports shall be available under paragraphs (d), (e), (f) and (g) only if the supply is made under procedure of ICB. However, in regard to mega power projects, the requirement of ICB would not be mandatory, if the requisite quantum of power has been tied up through tariff based competitive bidding or if the project has been awarded through tariff based competitive bidding. 8.3 Benefits for Deemed Exports- Deemed exports shall be eligible for any / all of following Exports benefits in respect of manufacture and supply of goods qualifying as deemed exports subject to terms and co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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