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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 ..... f Foreign Trade and refund sanctioned as the containers were ultimately used for export. While doing so, circular no.16 was issued on 15.03.2013, stating that in the case of supply of goods inter alia to 100% EOUs no refund of Terminal Excise Duty (TED) will be provided by the DGFT authorities. This was on the premise that the supplies were exempted from payment of excise duty and that if there was any error or oversight in the collection of tax, the concerned agency would refund it rather seeking reimbursement from DGFT. This was subsequently followed by another notification dated 18.04.2013 which sought substitution of para 8.3 (c) of the Foreign Trade Policy and provided that refund of TED would be given if exemption is not available; since exemption from CVD was available for supplies. The petitioner contended that an application was filed for refund of TED paid to the office of the Joint DGFT in respect of supply of tin containers to Vimal Agro Products Pvt. Ltd. against payment of Terminal Excise Duty (TED) during January 2012 to March 2013 i.e. prior to the issue of Circular No.16 dated 15.03.2013. This application was returned. Subsequently, another refund application (cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where supplies are made against ICD (a term which means "International Competitive Bidding"). In the present case, concededly, the petitioner did not make any supplies against the ICD. Therefore, it would be covered by latter part of para 8.3(c), i.e. cases where refund of TED will be given. This intention is given effect by the second entry in column (a) of para 8.4 read with corresponding benefits spelt-out in column (c) which states that entitlement in terms of para 8.3 to refund is permissible. The eligibility for refund, therefore, would be in terms of these provisions and the unit has to apply for such refund under para 8.5. 9. The authorities in this case appear to have proceeded to make an order adverse to the petitioner and proceeded to hold that the petitioner was disentitled to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that "refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund". This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case. This Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which have already been in existence. The circular has not introduced any amendment or new provisions or new conditions in the FTP. Any amendment made in the FTP, 2009-14, is duly done only through a Notification issued by the Government of India and not through a policy circular. The Chapter 6 of FTP, 2009-14 contains the provisions for setting up of Export Oriented Units (EOUs), import & import by them and allied governing provisions. Para 6.2(b) of FTP, 2009-14 clearly provides that an EOU may import/procure from Domestic Tariff Area (DTA), all types of goods, without payment of duty. The said provision has been further strengthened by Para 6.11(C)(ii), which provides that the goods procured by an EOU from the DTA would be exempted from payment of Central Excuse Duty. Applicant can take benefit under FTP subject to the conditions given in FTP/HBP. If FTP provides for exemption from payment of TED, it cannot, on its decide to pay duty and claim refund. 11. That para 8.3(c) of FTP 2009-14, provides for benefit of the Terminal Excise duty (TED). This covers both - TED refund as well as TED exemption, as applicable for different types of cases. TED refund is allowed where TED exem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rucial clarificatory circular was issued on that day. Two applications made in respect of sales to the EOUs (Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.) covered various periods prior to 15.03.2013. This aspect is of significance and appears to have completely lost sight off. The DGFT - as well as Central Excise Authorities have not principally denied that the supplies were made to EOUs (Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.). In these circumstances, the question is what constitutes the entitlement of such unit that supplied the goods to Export Oriented Units. This can be gained from the extracts of FTP, which are reproduced below : "8.2 Categories of Supply - Following categories of supply of goods by man/sub-contractors shall be regarded as "Deemed Exports" under FTP, provided goods are manufactured in India : (a) Supply of goods against Advance Authorisation/Advance Authorisation for annual requirement/DFIA; (b) Supply of goods to EOU/STP/EHTP/BTP; (c) Supply of capital goods to EPCG Authorisation holders; (d) Supply of goods to projects financed by multilateral or bilateral Agencies/Funds as notified by Department of Economic Affairs (DEA), MoF unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) was concerned with the clarification given by the Policy Interpretation Committee's decision of 04.12.2012 which stated that refund of Cenvat credit provisions were available under Central Excise Act and the Rules which should be availed of rather claiming refund. 8. In the present case too, DGFT has rejected the petitioner's claim on the ground that the benefit of refund is available to it under the provisions of Central Excise Act and Rules. Clearly this premise is erroneous. In the event, there is no dispute - as it appears to be having regard to the pleadings - that the supplies were made to EOU/EHTP/STP/BTP (categorically spelt 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 responden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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