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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 ..... . The petitioner company, by order No. REL/Hisar/CPG/SKM/VKA/0708/2108 dated 27.12.2007 with M/s.Reliance Infrastructure Limited erected the fire fighting system at Rajiv Gandhi Thermal Power Plant, Khedar, Hisar, by procuring ERW and GI pipes from M/s.Jindal Pipes Ltd., Gaziabad, and had paid excise duty for the same. 3. It is the further case of the petitioner that on December 15, 2008, the petitioner had filed an application to the second respondent, seeking refund of Terminal Excise Duty to the extent of duty paid on pipes purchased from M/s.Jindal Pipes Ltd., Gaziabad. The second respondent in F.No.04/41/083/ 00089/AM09 dated 24.02.2009, had rejected the prayer of refund of Terminal Excise Duty. 4. It was further contended that the petitioner company filed an appeal under Section 15 of the Foreign Trade (Development & Regulation) Act, 1992 against the order of the Joint Director General of Foreign Trade, Chennai, dated 24.02.2009 before the first respondent herein. After considering the said appeal, the first respondent in F.No.11/2/2009- 10/ECA.I/2021, 2022 had rejected the appeal on the ground that since the supplies were made under International Competitive Bidding, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said application, but the first respondent has not communicated the same to the petitioner company. The principles of natural justice have been violated. The first respondent ought to have given an opportunity to the petitioner company to rectify the mistakes or defects committed in the application, if any. Instead, the respondents have dismissed the application arbitrarily. Hence, they prayed for interference by allowing this Writ Petition. 9. A counter has been filed by the respondents, wherein, it has been stated that the petitioner, if it is aggrieved by any order, has to go for a Revision against the Order-in-Original under Section 15 and 16 of (Chapter V) of Foreign Trade (Development & Regulation) Act, 1992. 10. Section 15 of (Chapter V) of Foreign Trade (Development & Regulation) Act, 1992, speaks about the Appeal Provision for a person aggrieved by the order or decision of Adjudicating Authority, which is extracted hereunder:- "15. Appeal - (1) Any person aggrieved by any decision or order made by the Adjudication Authority under this Act may prefer an appeal,- (a) Where the decision or order has been made by the Director General, to the Central Government ; (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, call for and examine the records of any proceeding in which a decision or an order imposing a penalty or redemption charges or adjudicating confiscation has been made and against which no appeal has been preferred, for the purpose of satisfying it self or himself, as the case may be, as to the correctness, legality or propriety of such decision or order and made such orders thereon as may be deemed fit: Provided that no decision or order shall be varied under this section so as to prejudicially affect any person unless such person - (a) Has, within a period of two years form the date of such decision or order, received a notice to show cause why such decision or order shall not be varied, and (b) Has been given a reasonable opportunity of making representation and, if he so desires, of being heard in his defence." Section 17 of (Chapter V) of Foreign Trade (Development & Regulation) Act, 1992, deals with the powers of adjudicating and other authorities, which is extracted hereunder:- 17. Powers of Adjudicating and other Authorities. - (1) Every authority making any adjudication or hearing any appeal or exercising any powers of revision under this Act shall have all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal Excise Duty, where there is a provision of exemption in policy/procedures framed based on the recommendations of Board of Trade. It is also stated that the supply made to the eligible projects not covered under International Competitive Bidding are only entitled for refund of Terminal Excise Duty, which does not mean that refund of Terminal Excise Duty should be made, when the exercise of exemption of Terminal Excise Duty is not availed. When there is an exemption, no question of refund arises when they have paid it inadvertently. Whenever supplies made against International Competitive Bidding, they are exempted from payment of Terminal Excise Duty and the appellant cannot, at later point of time, claim for refund of the same. Against the order of Appeal dated 21.10.2009, the petitioner has to prefer a Revision before the Appellant Authority under Sections 15 and 16 (Chapter V) of FT (D & R) Act, 1992. Hence, they prayed for dismissal of the Writ Petition. 14. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and perused the materials available on record. 15. It could be seen from the records that the petitioner ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id not fall under the category of other cases and when the appellant is already exempted from Terminal Excise Duty, he cannot claim refund of Terminal Excise Duty at this juncture and hence, dismissed the same. 17. The learned counsel for the petitioner has relied on an order of this Court in "Lenovo (India) Pvt. Ltd., ..vs.. Union of India", which is reported in 2017 (346) E.L.T 12 (Mad.), wherein payment made inadvertently was ordered to be refunded. In the said matter, the issue which falls for consideration was as to whether the petitioner is entitled for refund of the Terminal Excise Duty. The fourth respondent therein, the Commissioner of Central Excise, has taken a stand that the petitioner is not entitled for refund. However, the claim for refund has been rejected by the third respondent therein by an order dated 13.08.2013, by which the petitioner's applications have been returned by referring to the Policy Circular No.16, dated 15.03.2016, which is impugned in W.P.No.23509 of 2014. By the said Policy Circular, the second respondent therein has stated that in cases, where the relevant taxes should not have been collected at the beginning, if there has been an error o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by DTA unit on supplies made to 100% EOU should be interpreted in the manner sought for the petitioner. The Court after taking into consideration the decision of the Hon'ble Division Bench of the Delhi High Court in the case of KONDOI METAL POWERS MFT. CO. PVT. LTD., v. UNKON OF INDIA [2014 (302) E.L.T. 209(Del), allowed the Writ Petition. At this stage it would be beneficial to refer to the operative portion of the order in RAJA CROWNS AND CANS PVT. LTD., which reads as follows: 9.After hearing the learned counsel for the parties and perusing the materials placed on record, it is seen that an identical set of facts, the Division Bench of the Delhi High Court took a decision in favour of the manufacturer. In fact, in the said case arose out of a decision taken pursuant to the resolution dated 04.12.2012 which is impugned in this writ petition. Therefore, the cause of action in the case before the Delhi High Court was the impugned resolution. Therefore, the decision rendered by the Delhi High Court binds the respondents and the Delhi High Court quoted with the approval in the decision of the Division Bench of the Calcutta High Court in JDGFT V. IFGL Refractories Limited (cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med 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 applications dated 29.08.2012 and 16.11.2012 within three months from today. The writ petition is allowed in the above terms. No costs." 10.In the light of the above finding, it is held that the issue involved in this writ petition is covered by the decision of the Delhi High Court and since the case before the Delhi High Court arose out of the order which was passed purs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ussed above if assessee's claim does not fall under clause (a) of paragraph 122 of Chapter X of the Scheme, that does not bar in case assessee claims the other relief under that paragraph that is 'refund of terminal excise duty'. We also agree with Mr. Banerjee that once the scheme provides for benefits of refund of terminal excise duty, that cannot be taken away, if the procedure has not been provided in the Handbook for refund. Handbook is a procedure to give effect to the provisions of the Scheme. If the provisions of Handbook does not provide to refund the terminal excise duty on the 'Deemed Exports' that does not mean that petitioner/respondent is not entitled for the 'refund of terminal excise duty'. 25. In case of refund of terminal excise duty, the concerned authority is DGFT to whom the petition has been moved for refund of terminal excise duty. Therefore, there is no question to approach the excise 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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