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TMI Blog2020 (1) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ABLE MR. JUSTICE BHARGAV D. KARIA 1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs; (A) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order directing Respondent No.3 herein to return and restitute ₹ 18,28,199/- deposited under protest by the Petitioner, with interest at appropriate rate for the period from October, 2017 till the actual repayment and reimbursement thereof. (B) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct Respondent No.3 herein to forthwith return and restitute ₹ 18,28,199/- to the petitioner on the terms and conditions that may be deemed fit by this Hon'ble Court. (C) An ex-parte ad-interim relief in terms of para 22(B) above may kindly be granted. (D) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted. 2. The short facts, giving rise to this writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kandla Special Economic Zone (for short KASEZ ) . 8. According to the writ applicants, the auditors of the Department of Commerce raised an issue in the year 2012 that CST reimbursement was not admissible when the goods were procured by an EOU like the writ applicant from any other EOU because Appendix 14-I-I refers to full entitlement of the reimbursement of CST paid by EOU and such other units on purchase made from the Domestic Tariff Area (DTA). 9. Circular No.13/8/2013-EOU dated 11th April, 2014 was issued by the Department of Commerce, Government of India, referring to the above position and informing the Development Commissioner, in charge of various SEZ areas that suitable action for recovery of CST reimbursement should be taken in view of the Appendix 14-I-I of the Foreign Trade Policy. 10. It is the case of the writ applicants that the validity of the aforesaid circular and also the action taken by the Development Commissioner, in seeking to recover the amount of CST reimbursement already allowed in favour of the various EOUs have come up before this Court in the Special Civil Application No.16301 2016 and this Court by judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that appropriate direction may be given to the respondents to decide the application of the writ applicants for refund of the amount of ₹ 18,28,1999/- within the stipulated time period in view of the judgment in the case of M/s. Asahi Songwon Colors Ltd. (supra), wherein it is held as under; 18. A minute scrutiny of these provisions contained in para 6.11 would reveal that the language used in clauses (a), (b) and (c), in general, was not made limited to the supplies from a DTA unit. As noted, clauses (a) and (b) both confined their application to the supplies made by the DTA unit. Clause (c) itself contained two situations. In sub-clause (i) what was envisaged was reimbursement of CST on goods manufactured in India. Sub-clause (ii) envisaged exemption from payment of CST on goods purchased from DTA on goods manufactured in India. Thus the policy wherever intended to limit the benefit of an EOU on procurement made from a DTA unit, it was so specifically provided. When therefore, sub-clause (i) of clause (c) of para 6.11 did not make any such reference to the procurement from a DTA unit but used the expression goods manufactured in India , it must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GFT 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 Drawback Rules under the FTDR Act can be legislated by the Central Government only in exercise of power conferred under Section 19 in the manner prescribed under the FTDR Act and the same cannot be delegated to the Respondent no. 2 as expressly prohibited by Section 6(3) of the above Act. 29. We, thus, find that any attempt by the executives to legislate without the authority of law should be branded as a colourable device and therefore, the same is in violation of Article 246 of the Constitution of India. If we accept the contention of Mr. Raval that the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Foreign Trade Policy itself envisaged such a restriction since only when the goods are manufactured in a DTA area, it may be stated that same are manufactured in India and by a deeming fiction any manufacturing activity taking place in an EOU should be excluded from such expression. The respondents would draw our attention to sub-section (l) of Section 3 of the Central Excise Act, 1944 , which besides others, envisages levy of excise duty on manufacture by a hundred per cent. export unit undertaking which goods are brought to any other place in India. In other words, on the goods manufactured in an EOU, excise duty would be leviable, only when such goods are brought to any other place in India. We would have certainly considered this angle further, but for the fact that in the later year, the Government of India itself has recognised the benefit of CST reimbursement on the purchases made by the EOU from another EOU. It was for this purpose that we had referred to and noted relevant portion of the Foreign Trade Policy, 2015-2020 and the procedure for claiming the CST reimbursement. We may recall that insofar as base policy is concerned for grant of such CST reimbursement, no c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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