2015 (7) TMI 393

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...., the broad facts, necessary for adjudication are not in dispute. 4. Broadly, the case of the petitioner is that at the behest of a sub-contractor, Bharat Heavy Electricals Limited (in short BHEL), it supplied boiler components to National Thermal Power Corporation (in short NTPC) under International Competitive Bidding (in short the ICB). 5. It is common case of both the parties that the Terminal Excise Duty  (in short the TED) has been paid by the petitioner. Under the Foreign Trade Policy formulated for period 2009-2014 (in short the FTP), the petitioner, is entitled to benefits of "Deemed Exports". 5.1 The relevant paragraph applicable to the petitioner is, paragraph 8.3(c), which is extracted herein below:- "Existin....

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....have also not received any decision/direction, in this matter."  "You may approach to DGFT if you wish (sic)against Policy circular No.16 dt . 16.3.2013". 7. To be noted, these notings have been made by respondent No.3, i.e. Joint Director General of Foreign Trade. The first noting is suggestive of the fact that since exemption was available to the petitioner qua the TED, application for refund was not maintainable; though the fact that supplies were made against ICB is established. In this behalf, file noting seems to have placed reliance on a circular dated 15.3.2013. 8. Insofar as the second noting is concerned, it is indicative of the fact that, a decision of this Court and the judgement of the Gujarat High Court was broug....

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....f of the respondent, is not sustainable in law. He has referred me to the judgment of this court in the case of Kondoi Metal Powders MFG. Co. Pvt. Ltd. (supra), and the judgment of the Division Bench of the Calcutta High court, in the case of JT. DGFT v. IFGL Refractories Ltd., 2002 (143) ELT 294 (Cal.). 12. The learned counsel for the petitioner says that not only do these two cases present a pari materia circumstance, but also go on to rule the provisions of the FTP of the concerned period while granting relief, similar to one sought in the instant petition. 13. I have heard learned counsels for the parties. I am of the view that insofar as the prayer (a) is concerned, the same cannot be granted; not for the reason that the petition....

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....ive interpretation of the FTP. The FTP, according to me, is clear, that where exemption has been availed of, no refund is payable to such an applicant. 17. As indicated above, the common case of parties before me, is that, exemption was not availed of by the petitioner, instead the petitioner ended paying TED. Therefore, the petitioner had two options: First, to seek refund of the Excise Duty from the Excise Department. Second to seek refund from the respondent herein. The petitioner has chosen the latter. The FTP, as it then existed, did not de-bar the petitioner from seeking a refund from one of the two departments, subject to fulfilment of other conditions. 18. In view of this position, I do not see any necessity of dealing with th....