2017 (8) TMI 432
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....vant extracts from the other judgments rendered by the other High Courts. 2. Mr.N. Venkatraman, Senior Counsel for Mr. Tushar Jarwal, Mr.C.K. Nandakumar and Mr. Raghuram Cadambi, learned counsels for the petitioner urged that the controversy in brief is that the petitioner - M/s. Wipro GE Healthcare Private Limited ('Company' for short) claimed reimbursement of Central Sales Tax (CST) paid by it on the purchases of Medical Equipments from other suppliers in the course of inter-state Trade and Commerce, in terms of the provisions made in the relevant Foreign Trade Policy for the year 2009-2014. 3. The petitioner - Company purchases these goods from two sources, (i) from the Industries situated in Domestic Tariff Area (DTA) and (ii) from the EOU Units situated in EOUs/SEZs/EHTP/STPI specified Zones or areas. While in the said Foreign Trade Policy, the reimbursement of CST was allowed to the petitioner - Company, in so far as the goods purchased from Domestic Tariff Area (DTA) Units (other than specified SEZs/EOUs/EHTP/STPI areas), the said benefit of reimbursement was denied by the Respondent - Authorities, if such goods were purchased from EOU/SEZ Units. 4. The said disti....
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....2009-2014 also cannot be denied to the petitioner - Company. 7. The Division Bench of Madras High Court in Writ Appeal Nos.1516 & 1517 of 2016 (The Development Commissioner, MEPZ, Special Economic Zone & HEQUs and others Vs. M/s Hospira Health Care India Pvt.Ltd.) vide its judgment rendered on 14/06/2017 held as under: "11.8.A holistic reading of the Scheme of Chapter 6 is, indicative of the fact that, there are several entitlements available to an EOU unit, none of which seems to suggest that it is either prohibited from purchasing goods from a DTA unit or from making a domestic sale, subject to it fulfilling the threshold NFE, fixed qua the concerned unit. 12. We must, however, confess that the heading/marginal note to paragraph 6.11 is indicative of the fact that the entitlements, provided therein may, perhaps, be restricted only qua supplies received by an EOU from a DTA unit. That being said, as discussed above, the Scheme of Chapter 6 is not suggestive of the fact that there is any impediment on the EOU Unit receiving supplies from DTA or an EOU unit, making supplies to a DTA unit, as was sought to be contended by Mr.Rajagopalan. The heading or a marginal note, in our view....
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.... which would be leviable under the Customs Act, 1962 or any other law, for the time being in force, on like goods produced or manufactured outside India, if, they were to be imported into India and where the said duties of customs are chargeable, by reference to their value, the value of such excisable goods is required to be determined under the provisions of Customs Act, 1962 and the Customs Tariff Act, 1975. This aspect of the matter clearly emerges, upon a bare perusal of Section 3 of the 1944 Act. 15. Therefore, quite clearly, both in law and on facts, it cannot be contended by the appellants that goods manufactured by EOU units are not goods manufactured in India and, thus, do not fulfill the conditionality for reimbursement of CST, as contained in sub-clause (i) of clause (c) of paragraph 6.11 of the 2009 FTP. 16. The other argument of Mr.Rajagopalan that, if, the argument advanced on behalf of the respondent company/Writ Petitioner was to be accepted, then supplies made by one EOU unit to another EOU unit would also qualify for reimbursement of CST, which, in turn, would result in loss of Central Excise Duty to the exchequer, is obviously flawed. This argument, is, to our....
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.... provisions of clause (2) of Appendix 14-I-I cannot take away what has been conferred upon the respondent company/Writ Petitioner under the 2009 FTP. 19.3. The delegatee cannot be vested with powers, beyond that which is provided under the parent legislation. Clearly paragraph 2 of Appendix 14-I-I goes beyond what is provided for in the 2009 FTP, as it seeks to change the contours of the provision made in paragraph 6.11(c)(i) of the said policy. As a matter of fact, it appears that the appellant Nos.1 and 2 also understood the provisions of paragraph 6.11.(c)(i) of the 2009 FTP, in the manner, in which, it was understood by the respondent company/Writ Petitioner, as it granted reimbursement of CST for most part of 2010 and 2011, except for the first quarter of 2012 and the periods which followed thereafter. 20. The fact that Appendix 14-I-I went beyond the scope of 2009 FTP appears to have donned upon the Central Government, when, the 2015 FTP was formulated. Accordingly, Appendix 6H, annexed to the 2015 FTP provided that reimbursement of CST, would be available not only qua purchases made from DTAs, but also, inter alia, vis-a-vis purchases made from EOUs. 21. The submission of....
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....erial from DTA on the basis of the Circular dated 14.01.2015, which is not only in conflict with the provisions of the FTP but is illegal otherwise also which cannot override the FTP. The second aspect of the matter involved in this petition is the authority responsible for the reimbursement of CST to the petitioner. The Hand Book of the Procedures under the FTP clearly lays down that the claims for reimbursement of CST shall be presented inter alia to the designated officer of the STP and that the disbursing authority of such claimed amount will inter alia be the designated officer of the STP, who will make payment to the units claiming reimbursement. This is implicit from Clause (i) and (xi) of the procedure contained in Appendix 14-I-I of the Hand Book of the Procedures, which have been quoted above. The aforesaid clause makes it implicit that the designated officer of the STP is entitled to receive the applications for claim for reimbursement of CST and that he alone is supposed to disburse it and to make payment thereof to the claimants. In short, the liability is squarely cast upon the designated officer of the STPI to receive application for reimbursement and to make pay....
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....oreign Trade Policy 2004-2009 did not limit the benefit of CST reimbursement to a EOU on purchases made only from a DTA unit. 19. xxx xxx xxx 20. xxx xxx xxx 21. Even otherwise, the Hand Book of Procedures and in particular Appendix 1411 contained therein nowhere aims to lay down any policy but prescribes the procedure to be followed for reimbursement of CST. It is undoubtedly true that para.2 of this Appendix restricts the CST reimbursement on purchases made by an EOU from a DTA unit. However, this restriction in our opinion would run counter to the terms of FTP itself and ultra vires the powers of the Director General of Foreign Trade. The title of the Appendix itself provides that it is a procedure to be followed for reimbursement of Central Sales Tax. Para.1 further clarifies that the procedure given in the said annexure shall be applicable for reimbursement of CST. There is little doubt therefore, that Appendix 14II aimed to lay down the....