TaxTMI 
TaxTMI 
2015 (2) TMI 173
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....se notices, copies of which are annexed to the Petition at Annexures P-1 onwards. 3. It is the case of the Petitioner that these show cause notices are based on the clarification and the clarification could not be made applicable to the case covered by the Government of India, Ministry of Commerce, Directorate General of Foreign Trade decision dated 5th December 2000 or in any event 2011 decision as contained in the minutes of the meeting, cannot be applied retrospectively that this Writ Petition should be entertained, more particularly, when there are no disputed questions of facts. 4. Since we have to deal with the objection on maintainability of this Writ Petition, we would refer to the decisions cited by Mr. Sridharan, learned Senior Counsel appearing on behalf of the Petitioner and Mr. Avasia, learned counsel appearing on behalf of the Respondents. 5. Mr. Sridharan referred to a decision of the five Judges Bench of the Hon'ble Supreme Court in the case of Filterco and Another v. Commissioner of Sales Tax, Madhya Pradesh and Another reported in 1986 (24) E.L.T. 180 (S.C.). 6. The Hon'ble Supreme Court held that when superior officer-Commissioner of Sales....
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....ral Government would be in a position to consider all the aspects including whether the latter clarification would govern the case covered by the earlier 2000 decision. Therefore, Writ Petitions should not be entertained and particularly in the above background. 10. After having heard the learned counsel for the Respondent and finding that the Writ Petitions raises a issue of applicability of the Circular, which was issued earlier in 2000 and to the goods supplied thereunder and whether that aspect should be decided in the light of the subsequent decision of the Policy Interpretation Committee dated 18th March 2011, that we are of the opinion that no useful purpose would be served by relegating the Petitioners to the alternate remedy suggested by Mr. Avasia. The Writ Petitions are pending in this Court form 2012. During their pendency, a reply affidavit was called for, both on jurisdictional and maintainability aspects also merits. In response thereto, a detailed affidavit in reply has been filed. In these circumstances and when the show cause notices are based or founded only on the decision of the Policy Interpretation Committee dated 15th March 2011 that we are of the opin....
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....f Commerce, Director General of Foreign Trade communication, Annexure 'H' dated 5th December 2000. The same reads as under :- "2. It is noted that it is not possible for a single contractor to manufacture himself all the items required for completion of such projects and hence certain items, either imported or indigenous have necessarily to be procured from other sources. These items are often directly supplied to the project for assembly, commissioning, erection, testing etc. at site. It is, therefore, clarified that for all such directly supplied items whether imported or indigenous as are used in the project, the condition of 'manufacture in India' a pre-requisite for grant of deemed export benefits, in satisfied in view of the fact that the aforesaid activities being undertaken at the project site constitute 'manufacture' as per the definition given in para 3.31 of the EXIM Policy and accordingly the duties (customs and central excise) suffered on such goods shall be refunded through the DBK route. 3. In the case of civil construction projects falling under para 10.2(d) of the EXIM Policy read with this office clarification issued vide Policy Circular No. 3 2 (RE-98....
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.... the Petitioners. 16. In that regard, what we find from the affidavit in reply of the Respondents viz. Deputy Director General of Foreign Trade, is that such a Policy was indeed framed. In paragraph 14 of the affidavit the deponent states that the Central Government for the period from 2004-2009 and 2009-2014 formulated and announced Foreign Trade Policy. In paragraph 1.2, the Foreign Trade Policy specifically provides that the said Policy incorporating provisions relating to export and import of goods and services, shall come into force with effect from 1st September 2004 and shall remain in force upto 31st March 2009 unless as otherwise specified and shall come into force with effect from 27th August 2009 and shall remain in force upto 31st March 2014 respectively unless otherwise specified. Thus, all exports and imports on and with effect from 1st September 2004 and 27th August 2009 including deemed exports shall be governed only by the provisions of respective policy and not by any earlier policy, circulars, public notice or interpretation. It is submitted that the communication dated 5th December 2000 which was in relation to the then existing Policy cannot be made appli....
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....ailed to respond, the Respondents issued the show cause notices as per the Foreign Trade (Development and Regulation) Act, 1992. The affidavit thus contains a justification as to why show cause notices have been issued. We find in the entire affidavit that the Respondents have not explained as to why they decided to recover the benefits earlier granted and from parties like the Petitioners, why the Petitioners were not entitled to the benefits in terms of the earlier policy and specifically is not explained. All that we find is that the deemed exports were for certain categories. In that regard, what we find is that the interpretation which was placed on the provisions of the Foreign Trade policy and particularly Chapter 8 by the Committee in its meeting dated 15th March 2011 is extensively referred to. The denial of duty drawback for excise duty paid on High Speed Diesel, Steel, Cement has been correctly done as per this interpretation. Paragraph 41 on page 175 of the affidavit in reply reads as under :- "41. Para 8.4.4 of FTP allows deemed export benefits for the following categories : (i) In respect of supplies made under para 8.2(d), (f) and (g) of FTP supplier shal....
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....lusion is that supplies of cement and steel to mega power projects are not eligible for deemed export benefits. Hereto annexed and marked as Exhibit No. 5 and 6 are the copies of Custom Notification No. 21/2002 dated 1-3-2002 and Chapter 98.01 of Customs. Further para 8.4.7 sets out conditions for benefit for supply to NPCIL under para 8.2(j) of FTP as reproduced under : "In respect of supplies made to nuclear power project under para 8.2(j) of FTP, the supplier would be eligible for benefits given in para 8.3(a), (b) & (c) of FTP, whichever is applicable. Supply of only those goods required for setting up any nuclear power project specified in list 43 at Sl. No. 401 of Notification No. 21/2002-Customs dated 1-3-2002, as amended from time to time having a capacity of 440 MW or more as certified by an officer not below rank of Jt. Secretary to Government of India in Department of Atomic Energy, shall be entitled for deemed export benefits where procedure of competitive biding (and not ICB) has been followed. Here again, the relevant custom notification allows only capital goods covered by Chapter 98 of the custom tariff to be imported. The goods so covered are capital goods like m....
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....goods. In paragraph 2 of the minutes which has been stated that these authorities pointed out their inability to settle the deemed export claims due to inadequate budgetary provisions. These difficulties are noted in paragraph 2 further and there is a reference to Public Notice issued on 1st March 2011. In paragraph 3 of the minutes, the issue of claiming deemed export benefits issued by the project authority was discussed. After detailed deliberations, it was decided that if the bill of entry is in the name of Project Authority, the deemed export benefit would not be available. 19. Then reference is made to the refund of Terminal Excise Duty for supplies to non-mega power projects. A reference is made to the Foreign Trade Policy 2009-14 and it is stated that the benefit of this refund is not available for such supplies. In such case, excise duty paid at the terminal stage of supply is not to be refunded in any manner including as drawback. It was clarified that any supply made directly to the Project Authority by an entity other than the main contractor or the sub-contractor shall not be eligible for the deemed export benefits. Then, a reference is made to the cases for deem....