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TMI Blog2019 (5) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed in favour of the assessee and against the respondent, this petitioner is also entitled for similar relief seeking for refund of the Terminal Excise Duty and respondent is directed to process the refund claim petition made, in accordance with 2009 policy. Petition allowed. - Writ Petition No.13205 of 2010 - - - Dated:- 5-4-2019 - Mrs. Justice V. Bhavani Subbaroyan For the Petitioner : Mr.Hari Radha Krishnan For the Respondents : M/s.N.K.Nithila Vani ORDER This Writ Petition is filed praying to issue a Writ of Certiorarified Mandamus, to quash the impugned order dated 20.10.2009 in F.No.11/2/2009-10/ECA.I/2021, 2022 passed by the first respondent and to direct the second respondent to sanction the refund of Terminal Excise Duty to the extent of duty paid on pipes purchased from M/s.Jindal Pipes Ltd., Gaziabad. 2. The case of the petitioner is that the petitioner company is providing fire protection solution services and they were approached by M/s.Reliance Infrastructure Ltd., Mumbai, who is the main contractor for Rajiv Gandhi Thermal Power Plant, Khedar, Hissar, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Authorization for annual requirement / DFIA. (b) Deemed Export Drawback. (c) Exemption from Terminal Excise Duty where supplies are made against the ICB. In other cases, refund of Terminal Excise Duty will be given. 6. From the perusal of para 8.3(c), when in 'other cases', refund of Terminal Excise Duty will be given, which makes it clear that when the exemption is not utilised upfront, the same has to be refunded, when claimed. 7. It is also submitted by the learned counsel for the petitioner that Para 8.3.1 of Handbook of Procedures provides for refund of Terminal Excise Duty for the categories mentioned in para 8.2(d), (e), (f), (g), (h), (i) (j) of the Foreign Trade Policy. This provision covers para-8.2(d), which speaks about supply of goods to projects financed by multilateral or bilateral agencies/funds as notified by the Department of Economic Affairs, Ministry of Finance under International Competitive Bidding. When the said benefit is applicable for para-8.2(d), i.e., when the goods are supplied under International Competitive Bidding, such benefit is applicable for par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such appeal shall be entertained unless the amount of the penalty or redemption charges has been deposited by the appellant: Provided also that, where the Appellate Authority is of opinion that the deposit to be made will cause undue hardship to the appellant, it may, at its discretion, dispense with such deposit either unconditionally or subject to such conditions as it may impose. (2) The Appellate Authority may, after giving to the appellant a reasonable opportunity of being heard, if he so desires, and after making such further inquiries, if any, as it may consider necessary, make such orders as it thinks fit, confirming, modifying or reversing the decision or order appealed against, or may send back the case with such directions, as it may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary: Provided that an order enhancing or imposing a penalty or redemption charges or confiscating goods of a greater value shall not be made under this section unless the appellant has been given an opportunity of making a representation, and, if he so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d) Receiving evidence on affidavits; and (e) Issuing commissions for the examination of witnesses or documents. (2) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). (3) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall have the power to make such orders of an interim nature as it may think fit and may also, for sufficient cause, order the stay of operation of any decision or order . (4) Clerical or arithmetical mistakes in any decision or order or errors arising therein from any accidental slip or omission may at any time be corrected by the authority by which the decision or order was made, either on its own motion or on the application of any of the parties: Provided that where any correction proposed to be made under this sub section will have the effect of prejudicially affecting any person, no such correction sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer for Zonal Joint Director General of Foreign Trade in the Ministry of Commerce and Industry, Department of Commerce ie., the second respondent herein has rejected the same and stated that as per para 8.3(c) of Foreign Trade Policy, the supply made under the procedure of International Competitive Bidding is exempted from payment of Terminal Excise Duty, hence, refund of Terminal Excise Duty do not arise and the petitioner is not eligible to claim the same. 16. Against the said order of Zonal Joint Director General, an Appeal was filed before the Additional General of Foreign Trade, New Delhi, the first respondent herein. The same was considered by the first respondent and by an order dated 21.10.2009, the first respondent had observed that according to para 8.3 to FTP, the supplies made under International Competitive Bidding are exempted from payment of Terminal Excise Duty. The appellant's contention that there is no exclusion clause either in the Foreign Trade Policy or Handbook of Procedures stating that Terminal Excise Duty cannot be granted in case of supplies made under International Competitive Bidding. Personal hearing was given to the appellant on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, it was clarified that in respect of supplies, the supply of goods under invalidation letter issued against the Advance Authorisation; supply of goods under International Competitive Bidding and supply of goods to EOUs, no refund of Terminal Excise Duty should be provided by the Regional Authorities and the DGFT, because such supplies are ab initio exempted from payment of excise duty. This Court, based on the Hon'ble Calcutta High Court Judgment in JDGFT .. vs.. IFGL Refractories Limited ( 2002 (143) E.L.T. 294 (Cal.)) , wherein the Hon'ble Calcutta High Court has held that once the supply of goods falls within the category of deemed export, the unit would be entitled for refund of Terminal Excise Duty. Accordingly, subsequent amendment was made to the existing regime, which in effect liberalised the position further and exempted payment of Terminal Excise Duty altogether cannot surely be a reason for denying the claim for refund of payment already made and accordingly, those Writ Petitions were allowed and the impugned order rejecting the the claim of refund is set aside and the respondents therein were directed to process the refund claim in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operative portion of the Judgment: 8.It would thus be seen that supplies made to EOUs in terms of para 8.2(b) are entitled to be regarded as deemed exports. The benefits for deemed exports include inter alia exemption from TED 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the Delhi High Court arose out of the order which was passed pursuant to the resolution impugned in this writ petition, the decision of the Delhi High Court binds the respondents. Thus, following the above referred decision, this Writ Petition is allowed and the impugned order is quashed and the third respondent is directed to process the refund claim in accordance with the 2009 Policy by taking into consideration the petitioner's refund application dated 16.08.2010 and pass appropriate orders in accordance with law, within a period of three months from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed. 19. The Hon'ble Division Bench of Calcutta High Court in Joint Director General of Foreign Trade ..vs.. IFGL Refractories Ltd. reported in 2002 (143) E.L.T. 294 (Cal.) held as follows:- 19. In the case in hand the admitted facts are that on supply of goods to VSP petitioner comes under the category of 'Deemed Exports' defined in para 120 under Chapter X and once his goods comes under the category of 'Deemed Export' under Chapter X it is ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise department for refund of any excise duty. Based on the above decision, the claim of the petitioner was allowed by this Court. 20. The learned counsel for the respondents relied on the judgment of the Hon'ble Mumbai High Court in Sandoz Private Limited and another ..vs.. The Union of India through the Secretary, Ministry of Commerce and Others reported in legalcrystal.com/1184128 , wherein it has been held that when the petitioner themselves were aware of policy circular and sought to urge that it would not be governing the controversy and for the period for which refund is claimed, then, it is clear that they were required to overcome the said stipulations and the circular itself and that having found rightly to be clarifying the obvious position, the Court has no hesitation in concluding that the refund applications were properly and correctly disallowed. The relevant portion of the said judgment is extracted hereunder:- 41. Once there was a clear stipulation in the policy itself, then, all that the circular does is to clarify this obvious position. If there was no obligation to pay duty, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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