9911796707
TMI Blog2022 (9) TMI 1353X X X X Extracts X X X X X X X X Extracts X X X X ..... s between February and August 2013. 2.Challenging the rejection, the petitioner had filed W.P.Nos.23507 to 23809 of 2014. Those writ petitions had come to be allowed by a learned Single Judge of this Court by order dated 24.10.2016, applying the decisions of the Delhi High Court in the case of Kondoi Metal Powers Mfg. Co. Ltd. Vs. Union of India [(2014) 302 ELT 209 (Del.) and Raja Crowns and Cans Pvt. Ltd. Vs. Union of India and Another [(2015) 310 ELT 40 (Mad.)]. 3. With the setting aside of the order impugned in those Writ Petitions, the 3rd respondent was directed to process the refund claims in accordance with law, taking into consideration the aforesaid case law as well. In WP.No.23509 of 2014, the petitioner had challenged Policy Circular No.16 dated 15.03.2013, that came to be closed in light of the direction of this Court in the other two writ petitions on the merits of the refund claim. 4. The orders impugned in W.P.Nos.9580 and 9576 of 2019 dated 28.02.2019 and 08.02.2019 respectively have been passed by the respondents as a consequence of order of this Court dated 24.10.2016. As far as another batch of refund claims was concerned, the authority rejected the same on 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of payment of duty given to EOU in respect of supply from DTA. 22. Notably, para 8.3(c) of FTP does not provide in-built eligibility "category" unlike specified in sub-paras (a) and (b) for ICB and Advance Authorisation Holder. The expression "in other cases" in sub-para (c) needs to be understood in proper perspective. Concededly, paras 8.4.1 to 8.4.7 provide for benefits to the supplier of goods to EOU as being deemed export. It is essentially an entitlement of DTA supplier - as listed in para 8.3(a), (b) and (c) of FTP, as may be applicable. It is seen that para 8.4.2 was substituted by the revised FTP of 2012, wherein a table was inserted32 . As per that table, benefits available under para 8.2 to specified categories of supplies including supply to EOU in para 8.2(b) had been extended benefits under para 8.3, as applicable. 23. The eligibility for refund of TED/drawback in terms of para 8.3(c) of FTP is made dependent on the non-availment of CENVAT credit/rebate on such goods by the recipient thereof, as is envisaged in original para 8.5. The same reads thus: "8.5 Eligibility for refund of terminal excise duty/drawback Supply of goods will be eligible for refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tities. It needs no elaboration. Thus, an argument having potential of defeating the intent of the applicable FTP, in any manner, ought to be negated. 8. At para 25, the Bench summarises the scheme under the Foreign Trade Policy holding that EOUs were entitled, ab initio, to an exemption from the payment of central excise duty in respect of goods procured from DTA and goods manufactured in India, as the import of goods was to be made after the payment of duty. 9. Thus, the EOU, upon obtaining a suitable disclaimer from the supplier is entitled to the benefit available to the supplier under Chapter 8 of the policy. Their conclusions, from para 26 to 32 are as follows: 26. Upon conjoint reading of the relevant para and its clauses, it leaves no manner of doubt that the intent of the subject FTP was to encourage DTA suppliers by providing refund of TED in terms of para 8.3(c), subject to fulfilment of formalities and stipulations in Chapter 8 of FTP. This was also to generate foreign exchange as a consequence of goods supplied as inputs or otherwise, were finally exported by the EOU. The EOU, on the other hand, could only avail of the entitlement of the DTA supplier if the DTA sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat is because in law it is a case of deemed export by virtue of applicable FTP. 28. If the refund claim is by the EOU, the same needs to be processed by the authorities under the FTP by reckoning the entitlement of DTA supplier specified in Chapter 8 of the FTP concerning the goods supplied to it, being a case of deemed exports. The EOU on its own, however, is not entitled for refund of TED, as the mandate to EOU is to procure or import goods from DTA supplier, without payment of duty in view of the express ab initio exemption provided in terms of para 6.2(b) read with para 6.11(c)(ii). However, despite such express obligation on the EOU, if the EOU has had imported goods from DTA supplier by paying TED, it can only claim the benefit of refund provided to DTA supplier under para 8.4.2 read with paras 8.3(c) and 8.5 subject to obtaining disclaimer from DTA supplier in that regard and complying with other formalities and requirements. 29. We thus agree with the conclusion reached by the Bombay High Court that the EOU is not entitled to claim refund of TED on its own. However, we add a caveat that EOU may avail of the entitlements of DTA supplier specified in Chapter 8 of FTP on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the refund, which otherwise is not available, can be claimed. Thus, evidently, this amounts to monetization/encashment of unutilized CENVAT credit. The entire supplies which are otherwise not eligible for refund of unutilized CENVAT credit. The entire exercise of to first use the unutilized CENVAT credit for making the payment of Central Excise duty and then to claim refund is against the provisions of FTP/CENVAT Credit Rules and ought not to be allowed. Government does not allocate money for such refund being ab-initio exemption. 11. The provisions of exemption from payment of duty is available since long time. Therefore it is incorrect to say that the Policy has been changed through Policy Circular No. 16 dated 15.03.2013. In view of the detailed position given in the preceding Paras, it is reiterated that in terms of Para 6.2(b) & Para 6.11 (c) (ii) of the FTP, red with CBEC Circular No.851/9/2007 dated 03.05.2007, the goods supplied by a DTA unit to an EOU/STP/EHTP/BTP are entitled to exemption from payment of Excise Duty. 11. Thus, the factum of payment of duty by the petitioner stands established. In the case of Sandoz Private Limited (supra), the Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
