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TMI Blog2023 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... exempted from such liability under paragraph No.6.11 (c)(ii) of the FTP being deemed exports. Since the Supreme Court has held that EOU is additionally eligible to avail of the entitlement of the DTA even though no duty was paid by them being ab initio exempt from payment of such duty subject to a suitable disclaimer from the DTA supplier and subject to compliance of other necessary formalities, in view of the change in law, the matter can be remanded to the concerned Commissioner for consideration. The communications dated 12 September 2014 annexed at Exhibit F (collectively) are quashed and set aside, and the refund claims submitted by the Petitioner on 10 December 2012 stands restored to file of Respondent No.2 to be forwarded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate to enable Petitioner to claim a refund of TED paid on the goods cleared by the DTA units. 4. There is no dispute about the procurement of inputs on payment of CENVAT duty or use of the said inputs for the manufacture of the final products by the Petitioner for exports and not taking credit of duty so paid by the DTA units. 5. In terms of paragraph No.8.2 (d) of the Foreign Trade Policy 2009-2014 ( FTP ), supply of goods to an EOU is a deemed export and entitled to the benefits of deemed export in terms of paragraph No. 8.3 read with paragraph No.8.5 of the FTP. In paragraph No.8.3, deemed exports are eligible for all the benefits in respect of manufacture and supply of goods qualifying as deemed export subject to terms an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cases where supplies of goods, under deemed exports, is ab initio exempted. 2. There are three categories of supplies where supply of goods, under deemed exports are ab initio exempted from payment of excise duties. These are as follows: (i) Supply of goods under Invalidation letter issued against Advance Authorisation ( Para 8.3(c) of ETP); (ii) Supply of goods under ICB (Para 8.3(c) of FTP); AND (iii) Supply of goods to EOUs (Para 6.11(c)(ii) of FTP). 3. Prudent financial management and adherence to discipline of budget would be compromised if refund is provided, in cases, where exemption is mandated. In fact, in such cases the relevant taxes should not have been collected to begin with . And it, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulations in Chapter 8 of FTP. This would generate foreign exchange as a consequence of goods supplied as inputs or otherwise, finally exported by the EOU. The EOU, on the other hand, could only avail of the entitlement of the DTA supplier if the DTA supplier had not taken rebate or Cenvat credit facility (as per para 8.5) treating it as deemed export. This was followed until the issue of the Policy Circular dated 15 March 2013. 8. The Petitioner, on 10 December 2014 filed five applications with the Development Commissioner claiming a refund of CENVAT duty paid by the DTA units on the inputs supplied to the Petitioner for three quarters in the year 2011 and two quarters in the year 2012. 9. It is the case of the Petitioner that wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that EOU entities who had procured and imported specified goods from DTA supplier are entitled to do so without payment of duty having been ab-initio exempted from such liability under paragraph No.6.11 (c)(ii) of the FTP being deemed exports. Learned counsel submits that the Hon ble Court also goes on to hold that under paragraph No.6.11 (a) of the FTP, EOU is additionally eligible merely to avail of entitlement of DTA supplier as specified in Chapter 8 of FTP upon production of a suitable disclaimer of DTA supplier and subject to compliance of necessary formalities and stipulations. That it would not be a case of entitlement of EOU, but only a benefit passed on to EOU for having paid such amount to DTA supplier which was otherwise ab-init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of necessary formalities and stipulations. It would not be a case of entitlement of EOU, but only a benefit passed on to EOU for having paid such amount to the DTA supplier, which was otherwise ab initio exempted in terms of para 6.11 (c) (ii) of the FTP coupled with the obligation to import the same without payment of duty under para 6.2(b). 14. Mr. J.B. Mishra, learned counsel for the Respondents, would submit that earlier in view of the decision of this court in Sandoz Private Limited Vs. Union of India (2016 (341) ELT 22 (Bom.), it was inter alia held that an EOU is not entitled to claim refund of TED of its own, this conclusion of this Court has been upheld by the Hon ble Apex Court; however, the issue regarding additional e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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