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TMI Blog2023 (5) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... e through the judgment delivered by the Hon ble Supreme Court in Sandoz Private Limited and the issue involved in the present case stands concluded on account of the said judgment. The Respondent herein/ Petitioner shall be entitled for refund in accordance with law - Application disposed off. - HON'BLE CHIEF JUSTICE SATISH CHANDRA SHARMA, AND HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD MEMO OF APPEARANCE: For the Appellants/ UOI : Ms. Shivalakshmi, CGSC with Ms. Ridhima Malhotra and Ms. Srishti Rawat, Advocates. For the Respondents : Mr. V. Lakshmikumaran, Ms. Charanya Lakshmi Kumaran, Mr.Yogendra Aldak and Mr. Kunal Kapoor, Advocates. SATISH CHANDRA SHARMA, CJ. (ORAL) 1. Regard being had to the controversy involved in the aforesaid three cases, they were heard analogously and a common judgment is being passed in these matters. The facts of LPA 616/2018 titled Union of India Others Vs. M/s Deepak Enterprises are being dealt with hereunder. 2. M/s Deepak Enterprises is a manufacturer of Motor Vehicle Parts (Back Plates) having a unit located in a Domestic Tariff Area (DTA). The Respondent herein filed a writ petition before this Court claimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n terms and is independent on the rights and liabilities of the parties under the import export policies framed under the Act. The said decision squarely covers the controversy in the present case. 21. In Joint Director general of Foreign Trade v. IFGL Refractories Ltd.: 2002 (143) ELT 294 (Cal) - which was also referred to by this Court in Kandoi Metal Powders Mfg Co. Pvt. Ltd s case - the Calcutta High Court had held once the policy provides for refund of TED, the said right could not be taken away for want of a procedure under the Hand Book of Procedures. The court further held that In case of refund of terminal excise duty, the concerned authority is DGFT to whom petition has been moved for refund of terminal excise duty. Therefore, there s no question to approach the excise department for refund of any excice duty . 22. Mr Narula s contention that the said decision did not refer to the policy circular dated 15.03.2013 and, therefore, ought to distinguished cannot be accepted. A plain reading of the said decision indicates that the Division Bench had taken note of the policy circular dated 15.03.2013. More importantly, the reasons as indicated in the said circula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fg. Co. Pvt. Ltd. (supra) and the same was not applicable in the facts of this case. However, a closer examination of the decision of the Bombay High Court indicates that the Court has in fact differed from the view expressed by this Court in Kandoi Metal Powders Mfg. Co. Pvt. Ltd. (supra). The Bombay High Court was of the view that the Court was unable to comprehend the rationale of the decision of the second and third respondents . The Court was also of the view that the policy circular dated 15.03.2013 was merely clarificatory and the DGFT had the power to interpret and implement the policy. This is different from the view of this Court in Kandoi Metal Powders Mfg. Co. Pvt. Ltd. (supra), wherein the Court had opined that Cenvat regime under Central Excise operates in its own terms and is independent of the rights and liabilities of the parties under the FTP. This Court is also unable to concur with the view of the Bombay High Court that the Policy Circular dated 15.03.2013 clarifies an obvious position. Plainly, in such case, there was no requirement to amend the FTP. 24. Mr Narula had also referred to the decision of the Division Bench of this Court in Union of India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15.03.2013 insofar as the same are relied upon to reject the claim of the petitioner for refund of TED are set aside. The respondents are directed to process the petitioner s claim for refund of TED. 27. The pending application is also disposed of. 7. The Appellants/ Union of India (UOI) have preferred the present writ appeals being aggrieved by the aforesaid judgment of the learned Single Judge, whereby the claim of the DTAs for refund of TED paid by them at the time of supply of the goods to EOUs by utilizing their CENVAT credit, has been allowed. 8. Learned Counsel for the Appellants/ UOI has stated before this Court that a common issue arises in all the three appeals, i.e. whether the DTA Units who had paid Excise Duty at the time of supply of goods to the EOU s, utilizing their CENVAT Credit, can claim refund of the same in light of the provisions of the FTP (2209-2014). 9. It has been stated before this Court that the said issue stands covered by the judgment delivered by the Hon ble Supreme Court in Sandoz Private Limited Vs. Union of India Others, 2022 SCC OnLine SC 10, wherein the Hon ble Supreme Court while allowing the claim for refund of TED has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge of the Calcutta High Court in IFGL Refractories Limited (2001) 132 ELT 545 (Cal.). The High Court noted that the Export and Import Policy for the relevant years was adopted amongst other to promote export of Indian products to foreign countries aiming at to earn foreign exchange and to increase global market. The scheme was propounded to encourage indigenous supplier by providing certain benefits and entitlements, either by way of exemption from payment of excise duty or to get refund of excise duty, if already paid. The object of the scheme was to provide exporters duty-free input for production of export materials and for that reason, it exempted supplier from payment of any excise duty and, if paid, to provide for refund of TED. The High Court further noted that merely because such refund was not permissible to the DTA supplier under the 1944 Act and the rules framed thereunder, that would not deprive the DTA supplier to avail of the entitlements and benefits under the FTP. It held that it is open to the assessee to take advantage of any law, particularly which is more beneficial. Accordingly, learned Single Judge issued directions to pay the refundable amount along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and relegated the writ petitioner before the Authority concerned for deciding the refund claim of the petitioner. This judgment has been followed in subsequent decisions, not only by the coordinate Benches of the High Court of Delhi, but also by other High Courts. 51. The Madras High Court in the case of Raja Crowns and Cans Pvt. Limited v. Union of India (2015) 317 ELT 40 (Mad.) dealt with similar claim of the DTA supplier of goods to EOU and whilst following the decisions of the High Court of Delhi and Calcutta High Court referred to above, opined that the assessee was entitled to maintain an application for refund of TED. The High Court, accordingly, directed the Authorities concerned to consider the refund application of the writ petitioner. Later on, the Madras High Court took the same view in Lenovo (India) Pvt. Ltd. (2017) 346 ELT 12 (Mad.) and Manali Petrochemical Limited v. Additional Director General of Foreign Trade, New Delhi W.P. No. 23194 of 2009, decided on 16.9.2019. 52. As aforesaid, the decision in Kandoi Metal Powders Manufacturing Company Private Limited (2014) 302 ELT 209 (Del.) has been subsequently followed by the High Court of Delhi in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly eligible to receive entitlements of DTA supplier as specified in Chapter 8 of the FTP subject to complying with necessary requirements and formalities. In other words, EOU is not entitled for refund of TED on its own accord, but can avail of the entitlements of DTA supplier on complying essential procedure. As mentioned earlier, the interest on the refundable amount, if paid in cash ought to be refunded with simple interest at the rate of 6% per annum as provided in para 8.5.1 of the applicable FTP, even in the case of application for refund by EOU. 56. The next question is : the refund claim should be set up before which Authority? As noted earlier, since the entitlement of exemption and refund of TED flows from the provisions of 1992 Act and FTP framed thereunder by the Central Government, which is an independent dispensation than the one provided in the 1944 Act and the rules framed thereunder, with the avowed purpose of promoting export and earning foreign exchange, it is the obligation of Authority responsible to implement the subject FTP, to deal with refund claim of the concerned entities. For, it is not a case of refund under the 1944 Act or 2002 Rules or 2004 Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X
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