9911796707
TMI Blog2023 (5) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... estic Tariff Area (DTA). The Respondent herein filed a writ petition before this Court claiming that during the period January, 2012 to April, 2013, it supplied Back Plates to two 100% Export Oriented Units (EOU's), namely, M/s Danblock Brakes India Pvt. Ltd and M/s Roulands Braking (India) Pvt. Ltd. It was further stated in the writ petition that the said goods were excisable goods and were cleared on payment of excise duty by the aforesaid EOUs and the said EOUs did not provide CT-3 certificates to the Petitioner. 3. It was further stated that it was permissible to supply the goods on payment of Terminal Excise Duty (TED) and subsequently claim refund. The Respondent herein/ Petitioner applied for refund of TED aggregating to Rs. 67,18,748/- in respect of goods supplied during the period January, 2012 to 17.04.2013. However, the said claim was rejected by the Joint Director General of Foreign Trade on 05.06.2013 with the endorsement - "as supply is made to 100% EOU, TED is not admissible in terms of policy circular dated 15.03.2013". 4. It is pertinent to note that on 18.04.2013, the Central Government published Notification No. 4 (RE-2013)/2009-2014 in exercise of powers confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.03.2013. More importantly, the reasons as indicated in the said circular were rejected. The relevant extract of the said decision is as under:- "9. The authorities in this case appear to have proceeded to make an order adverse to the petitioner and proceeded to hold that the petitioner was disentitled to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that "refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund". This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case. This Court is unable to comprehend the rationale of the decision of the second and third respondents who also seem to have suggested that the petitioner should approach the DGFT for appropriate relief or clarification. Neither of the authorities dispute that the petitioner supplied goods to the EOU at the relevant time. Its entitlement, therefore, was defined in terms of the existing policy, i.e. refund in terms of paras 8.2, 8.3, 8.4 and 8.5 of the 2009 policy as discussed above. That a subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Division Bench of this Court in Union of India and Ors. v. Alstom India Limited: 2015 (325) ELT 72 (Del) and on the strength of the said decision contended that the Division Bench had not accepted the earlier decision in Kandoi Metal Powders Mfg. Co. Pvt. Ltd. (supra). He further stated that the Court had set aside the observations of the learned Single Judge directing the authorities to examine the case of the Alstom India Ltd. keeping in mind certain observations and the judgment of this Court in Kandoi Metal Powders MFG. Co. Pvt. Ltd. (supra), and therefore, the said decision could be distinguished. The said contention is plainly without any merit. A plain reading of the decision of the Division Bench in Union of India and Ors. v. Alstom India Ltd. (supra) indicates that the Court had not expressed any opinion on any of the issues involved in the present petition. The observations made by the learned Single Judge in that case had been set aside only on the principle that a Court cannot direct a statutory authority to exercise discretion in a particular matter. The Division Bench held that since the learned Single Judge had held that no interference of the Court is war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for refund of TED has held that in the case of DTA supplier of goods to EOU, if TED has been paid by utilizing CENVAT credit, the refund would be in the form of reversal of commensurate amount of CENVAT credit amount. The operative portion of the said judgment delivered by the Hon'ble Supreme Court - as contained in paragraphs 44 to 59, reads as under: "44. 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 condition that it will not pass on that benefit back to DTA supplier later on. In any case, the refund claim needs to be processed by keeping in mind the procedure underlying the refund of CENVAT credit/rebate of excise duty obligations. If CENVAT credit utilised by DTA supplier or EOU, as the case may be, cannot be encashed, there is no question of refunding the amount in cash. In that case, the commensurate amount must be reversed to the CENVAT credit account of the concerned entity instead of paying cash. 45. If, the claim for refund by DTA supplier under the scheme of FTP is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t along with interest at the rate of 12 % per annum. The appeal filed by the Department against the said decision was rejected by the Division Bench of the Calcutta High Court in Joint Director General of Foreign Trade (2002) 143 ELT 294 (Cal.). The Division Bench, however, directed the DGFT to refund TED amount as it was the concerned Authority under the FTP, subject to assessee completing necessary formalities as provided for in the FTP. This decision was then affirmed by this Court consequent to dismissal of special leave petition being S.L.P. (C) No. 5368 of 2002, on 7.10.2002. 49. The next decision is of the High Court of Gujarat in the case of Commissioner of Central Excise and Customs v. NBM Industries (2012) 276 ELT 9 (Guj.). The Division Bench of the High Court considered the question whether DTA supplier of goods to EOU is entitled for refund of the CENVAT credit despite Rule 5 of the 2004 Rules, dealing with refund of CENVAT credit. The Authorities had held that not being a case of export of goods out of India, the assessee was not entitled for refund of CENVAT credit amount utilised in respect of subject goods supplied to EOU. The High Court relying on its earlier dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stom India Limited (2015) 325 ELT 72 (Del.), Commissioner of Central Excise, Delhi II v. Welspring Universal (2018) 359 ELT 635 (Del.), Deepak Enterprises v. Union of India (2018) 360 ELT 905 (Del.), Alstom Transport India Ltd. v. Union of India (2018) 363 ELT 69 (Del.), Motherson Sumi Electric Wires v. Union of India (2018) 364 ELT 91 (Del.), Multitex Filtration Engineers Limited v. Union of India (2020) 373 ELT 68 (Del.) and Hindustan Tin Works Limited v. Union of India (2020) 373 ELT 217 (Del.). 53. The view taken by the Calcutta High Court and followed by the High Court of Delhi commended even to the High Court of Karnataka in Acer India Pvt. Ltd. (2018) 361 ELT 44 (Kar.). 54. The view taken in these decisions at the instance of the DTA supplier of specified goods to EOU is in consonance with the view taken by us in this judgment. To that extent, we affirm these decisions and hold that the DTA supplier of goods to EOU would be entitled for refund of TED on the basis of applicable para 6.11(a) read with paras 8.3(c), 8.4.2 and 8.5 of the FTP under consideration. The modality of refund, however, ought to be in the form of reversal of commensurate amount in the CENVAT credit a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. 57. In conclusion, we hold that the EOU entities, who had procured and imported specified goods from DTA supplier, are entitled to do so without payment of duty [as in para 6.2(b)] having been ab initio exempted from such liability under para 6.11(c)(ii) of the FTP, being deemed exports. Besides this, there is no other entitlement of EOU under the applicable FTP. Indeed, under para 6.11(a) of the FTP, EOU is additionally eligible merely to avail of entitlements of DTA supplier as specified in Chapter 8 of the FTP upon production of a suitable disclaimer from the DTA supplier and subject to compliance 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). 58. Besides, if the DTA supplier as well as EOU had utilized its CENVAT credit for importing goods in question, the refund would be in the form of reversal of commensurate amount of CENVAT credit to the account of the concerned entity. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
