AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2015 (8) TMI 292
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.... the procedure of International Competitive Bidding (ICB) and that the writ petitioner being a sub-contractor of BHEL supplied boiler components during the period from 23.09.2010 to 31.01.2011 to NTPC on payment of Terminal Excise Duty (TED). According to the writ petitioner, the goods so supplied against ICB are exempted from duty of excise and therefore an application was made for refund of TED. Alleging that the said claim was erroneously rejected by the Director General of Foreign Trade (DGFT), Ministry of Commerce & Industry, the writ petitioner filed W.P. No.1331/2015. The said writ petition was disposed of by the learned Single Judge by order dated 11.02.2015 with a direction to DGFT to pass a suitable order within two weeks in the light of the observations made therein. 3. In pursuance thereof, DGFT passed an order dated 24.02.2015 rejecting the refund claim of TED of the writ petitioner. The said order dated 24.02.2015 was challenged by the writ petitioner by filing W.P. No. 2344/2015 and the same was disposed of by the learned Single Judge by order dated 11.03.2015 thereby setting aside the order dated 24.02.2015 and directing the respondents to refund the TED to the wri....
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....dvance Authorisation if such manufacturer, in turn, supplies the product(s) to an ultimate exporter." 8. It is not in dispute that the supplies made by the writ petitioner to NTPC were under ICB and therefore the supplies are exempted from payment of TED. However, the writ petitioner had paid the excise duty and thereafter made a claim for refund of the excise duty paid. The application for refund was purportedly filed under Paragraph 8.3(c) of the FTP, 2009-2014. 9. W.P. No.1331/2015 was filed on the basis of certain file notings made on the application of the writ petitioner to the effect that the application for refund was not maintainable. Having taken note of the fact that no order was passed rejecting the claim for refund but the prayer in the writ petition was to set aside the file notings made by the Joint Director General of Foreign Trade which were admittedly not communicated, the learned Single Judge held that the interference by this court is not warranted till rejection of the writ petitioner"s claim for refund is formally communicated. Therefore, the learned Single Judge disposed of the writ petition with a direction to DGFT to pass a suitable order within two weeks....
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....tted by Shri Sanjay Jain, learned ASG appearing for the appellants that Paragraph 8.3(c) of Foreign Trade Policy provides for both exemption of TED and refund of TED as applicable for different types of cases. It is sought to be explained that refund is allowed only where supplies were not made against ICB as clarified in the circular dated 15.03.2013 issued by DGFT. It is further submitted that the FTD does not permit an exporter to make a choice on the method of seeking benefit regarding TED. In other words, the contention of the learned ASG is that it is not permissible to an exporter who paid the TED for supplies made against ICB to claim refund by making an application under Paragraph 8.3(c) of FTP. 12. Pointing out that the writ petitioner had paid the excise duty through CENVAT Credit Account, the learned ASG vehemently contended that the refund sought to be claimed by the petitioner under FTP is to circumvent the provisions of CENVAT Credit Rules, 2004. He also submitted that refund of CENVAT Credit is not permissible for "deemed exports" under FTP since "deemed exports" do not come within the definition of exports under CENVAT Credit Rules. 13. The learned counsel for th....
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....bound by the same and the restrictions which have not been provided in the FTP cannot be read into. 15. We have given our thoughtful consideration to the rival submissions made on behalf of the parties. At the cost of repetition, it may be stated that the fact that the supplies that were made by the writ petitioner to NTPC against ICB are exempted from excise duty under the Central Excise Duty, 1944 is not in dispute. It is also not in dispute that similar exemption is provided under Paragraph 8.3(c) of FTP for the supplies made against ICB. However, the writ petitioner had not availed the exemption and the supplies were made to NTPC on payment of TED. Subsequently, the writ petitioner claimed refund of the TED paid and made an application under Paragraph 8.3(c) of FTP. During the process of his application, certain file notings were made that the application for refund was not maintainable and even before any order of rejection was passed, the writ petitioner approached this court. Though the learned Single Judge had rightly held that the interference at that stage is not warranted, certain observations were made interpreting the purport of Paragraph 8.3(c) of FTP and the DGFT wa....
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....both the orders impugned in the present appeals it was recorded that the counsel for the respondents/appellants herein expressed his willingness to argue the matter on the basis of the material placed on record. There can be no dispute that the parties are bound by the statements made on their behalf by the counsel engaged by them. However, in the facts and circumstances of the case, we are unable to hold that the appellants are precluded from contesting the entitlement of the writ petitioner to claim refund on the grounds urged in the appeals. It may be noted that the contentions advanced by the appellants have nothing to do with the facts but the whole controversy is with regard to interpretation of the provisions of the statutory policy. 20. As mentioned above, the specific case of the appellants is that refund under Paragraph 8.3 (c) of FTP is not available at all for supplies made against ICB. In the case of supplies made against ICB, according to the appellants, the TED is exempted and therefore an exporter may avail the benefit of exemption while making the supplies but he cannot claim refund on payment of TED. It is thus contended by the appellants that the writ petitioner....