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TMI Blog2024 (6) TMI 511X X X X Extracts X X X X X X X X Extracts X X X X ..... m. - HELD THAT:- The term deemed export is a creation of Export Import Policy and not defined under Central Excise Law. The benefits available to physical exports are also available to the deemed exports and the deemed exports are treated on par with physical export. In fact, in the physical export, the exporters is entitled to get refund of the excise duty paid on the raw materials. Likewise, under the deemed exports, by the Export Import Policy, TED is allowed. Therefore, the claim of the petitioner cannot be rejected on the ground that the goods supplied by the petitioner cannot be deemed exports. On perusal of the counter filed by the third respondent revealed that as per the terms of contract, the petitioner is entitled for the TED and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as TED ) is applicable and the project certificate for claiming TED for applicable goods will be issued by the third respondent. After completion of work, the petitioner submitted application to claim TED as prescribed under Chapter 7 of the Foreign Trade Policy (hereinafter referred to as FTP ) by enclosing necessary documents which are applicable to claim TED on 04.01.2016. However, the second respondent without considering the documents, rejected the application by an order dated 08.02.2017 on the ground that construction of Tsunami protection bund and retaining wall cannot be considered as deemed exports. 3. Thereafter, the petitioner submitted several representations before the second respondent and he was advised to approach the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Para 7.02(h) of the FTP. The construction of Tsunami protection bund and setting up of PFBR is also akin to setting up of nuclear power project. Whether it is a nuclear power project or not, is to be decided by the atomic energy department of government of India. When the Joint Director of Atomic Energy Department, the competent authority, certified it as a nuclear power project, the petitioner is entitled for the benefit of TED. The first respondent cannot take a different stand because, the eligibility criteria is to be certified by the department of atomic energy and this having been done by the said authority. Therefore, the first respondent is only the implementing authority and cannot deny the benefit of TED. 5. The first and secon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f had confessed that the goods were manufactured by a third party and directly supplied to the project site. Therefore, the petitioner does not come under the FTP and any other law for claiming refund of TED. 5.2. Supplies of goods will be eligible for refund of TED in terms of para 8.3(c) of the FTP, provided recipient of goods does not avail CENVAT credit/rebate on such goods. Similarly, supplies will be eligible for deemed export drawback in terms of para 8.3(b) of the FTP on Central Excise paid on inputs/components. Therefore, the claim of refund has been made against the supplies for construction of Tsunami protection bund retaining ball, which is no part and parcel of the nuclear project. Hence, the claim made by the petitioner rightl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract viz., M/s. Bharatiya Nabhikiya Vidyut Nigam Limited, to the first respondent. On perusal of letter dated 09.11.2015, issued by the third respondent also revealed that the refund clause of the FTP under which the petitioner is entitled for the claim of TED, sufficiently proved and satisfy the discharge of the obligations on the part of the third respondent. However, the petitioner unable to obtain the benefits from the first respondent. 10. In view of the above discussions, the impugned order cannot be sustained and it is liable to be quash. Accordingly, the orders dated 16.07.2020 21.07.2020, passed by the first respondent in PH Case No.03 in F.No.01/60/162/907/AM20/PRC meeting No.05/AM21, are hereby quashed. The first respondent i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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