AI Drafter 
TaxTMI 
TaxTMI 
2018 (7) TMI 868
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....ng these goods to other divisions of MSSL, which have a status of a 100% EOU. These goods are supplied by the petitioner on payment of excise duty, albeit, via CENVAT credit route. Since, according to the petitioner, supplies made to EOUs are classified as deemed export under the Foreign Trade Policy 2009-2014 (in short "FTP 2009-2014") - for supplies made for the quarter April, 2011 to June, 2011 and July 2011 to September 2011 applications for refund of TED were preferred with the respondents. Likewise, for the quarter October, 2011 to December, 2011 an application was made for refund of TED, which was received by respondent no.3 on 12.12.2012. 2.2 Interestingly, insofar as the earlier two applications were concerned, refund of TED was allowed by the Policy Interpretation Committee (PIC) and/or Policy Relaxation Committee (PRC) vide its order dated 23.07.2014. Thus, for the quarter April, 2011 to June, 2011, the petitioner obtained a refund of Rs. 20,21,241/- while for the July, 2011 to September, 2011 quarter, the petitioner, was refunded TED amounting to Rs. 96,95,182/-. 2.3 However, curiously, for the period October, 2011 to December, 2011 the request made by the petitio....
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....agraph 7.04 of the Foreign Trade Policy (FTP), it was advised to file a reply within a period of 90 days from the date of issuance of the said communication. 3.3 The petitioner being aggrieved filed a writ petition in this Court which was numbered as W.P.(C) No.123/2016. This writ petition was, however, dismissed as withdrawn on 08.01.2016 to enable the petitioner to file a reply to the communication dated 1/2.12.2015. The Court while dismissing the petition observed that the authority concerned should consider the reply and pass an appropriate order as expeditiously as possible. The petitioner was also given the liberty to challenge the order, if any, passed by the concerned authority, in accordance with law. 3.4 Accordingly, the petitioner filed a reply dated 08.02.2016 with respondent no.3. The petitioner was also granted a personal hearing by respondent no.3 on 15.03.2016. Thereupon, respondent no.3 passed the impugned order dated 21.04.2016, whereby, the petitioner's request for refund of TED was declined. The reasons given for rejecting the petitioner's request for refund of TED qua goods supplied to a 100% EOUs were briefly as follows: - i) Firstly, since, ab initio....
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.... be entitled, inter alia, to a benefit of refund of TED could be gauged from a bare perusal of the contents of paragraph 8.3(c) read with paragraph 8.4 of the very same FTP. In support of the aforesaid submission reliance was placed on the judgment of this Court rendered in Kandoi Metal Powders Mfg. Co. Pvt. Ltd. v. Union of India, 2014 (302) E.L.T. 209 (Del.). iii) The respondents having granted the petitioner refund of TED for the two quarters of 2011 i.e. April, 2011 to June, 2011 and July, 2011 to September, 2011, could not have denied the refund of TED for the quarter spread over October, 2011 to December, 2011. The respondents were required to adhere to the consistency and not change course midway. In support of this submission reliance was placed on the judgment of the Supreme Court rendered in Damodar J. Malpani v. CCE, 2002 (146) E.L.T. 483 (S.C.). iv) Paragraph 8.3(c) of the FTP 2009-2014 which provided for refund of TED where supplies were not made against ICB was amended via notification described as M.C. & I (DC) Notification No.4 (RE-2013)/2009-14 dated 18.04.2013 (in short "18.04.2013 Notification"). The said amendment made to paragraph 8.3 of the FTP could not....
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....ndents the following broad submissions were made: - i) The petitioner was not entitled to refund of TED in view of the fact that qua supplies of goods made by it to a 100% EOU, ab initio exemption was available from payment of excise duty. In other words, the petitioner was not required to pay excise duty in the first instance and, therefore, there was no reason for it to first pay duty via the CENVAT credit route, and then, monetise the same by seeking refund of TED. In this behalf, reference was made to paragraphs 6.2(b) and (d) of FTP 20092014 which, inter alia, provided that EOU could import or procure all types of goods including capital goods from a DTA supplier without payment of duty. (i)(a) The fact that goods manufactured in India and supplied from DTA to EOUs were exempt from Central Excise Duty was sought to be emphasized by referring to the provisions of paragraph 6.11(c) of FTP 2009-2014. Furthermore, reliance was also placed in this behalf on the CBEC Circular No.851, dated 03.05.2007. This circular, inter alia, provides exemption from payment of excise duty by a DTA supplier of goods upon the EOU furnishing a CT-3 form to a DTA supplier. (ii) The fact that ....
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....mbay High Court, in W.P.(C) No.2926/2015, titled: Lupin Limited v. Union of India & Ors. and W.P.(C) No.2927/2015, titled: Sandoz Pvt. Ltd. v. UOI and Ors. Reasons 8. I have heard learned counsel for the parties and perused the record. According to me, what emerges from the record, briefly, is as follows: - i) The petitioner had supplied goods to 100% EOUs after payment of excise duty. ii) However, excise duty was paid by the petitioner by taking recourse to the CENVAT credit route. iii) The petitioner had filed three separate applications with the Joint Director of Foreign Trade for refund of TED. The period and the amount of refund sought qua each of the applications, as it emanates from the record, is as follows: - Sl. No. Period Amount (in Rs.) a). April to June, 2011 20,21,241.00 b). July to September, 2011 96,95,182.00 c). October to December, 2011 83,64,802.86 iv) The applications for April to June, 2011 and July to September, 2011 were rejected, in the first instance, by the licensing authority vide their communication dated 28.12.2012, on the principal gro....
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....to the notice of respondent No.3 vide communication dated 23.09.2014. However, on the said application an endorsement was made that PRC's decision dated 09.09.2014 pertains to only those cases qua which writ petition was filed by the petitioner. ix) Consequently, the petitioner escalated the matter to the Chairman, PRC vide communication dated 11.10.2014 wherein, inter alia, it was pointed out that notification No.4 dated 18.04.2013 could not impact its application for refund of TED for quarter October, 2011 to December, 2011. x) Despite information and documents being sought by respondent no.4 vide its communication dated 05.12.2014, which though furnished, did not bear fruit. xi) As a result thereof, after several reminders and pursuant to the directions obtained from this Court via another writ petition i.e. W.P.(C) No.123/2016, respondent no.3, ultimately, rejected the petitioner's claim for refund vide the impugned order dated 21.04.2016. 9. Therefore, apart from anything else what emerges from the record is that the PRC's decision is neither consistent nor even handed. Though the petitioner obtained refund of TED for the quarter April, 2011 to June, 2011 and July, 20....
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....ns as in HBP v1: - (a) Advance Authorisation/ Advance Authorisation for annual requirement/ DFIA. (b) Deemed Export Drawback. (c) Exemption from terminal excise duty where supplies are made against ICB. In other cases, refund of terminal excise duty will be given. Exemption from TED shall also be available for supplies made by an Advance Authorisation holder to a manufacturer holding another Advance Authorisation if such manufacturer, in turn, supplies the product(s) to an ultimate exporter." 11. A careful perusal of the aforesaid extract of para 8.3, in particular, clause (c) would show that goods which qualify as deemed exports are exempt from TED where supplies are made against ICB. However, where supplies are not made against ICBs refund of TED is to be given. This fact is reiterated in para 8.4 which speaks about various benefits available to supplier under paras 8.3(a), (b) & (c) to suppliers. Paragraph 8.5 of the FTP 2009-2014 also alludes to the fact that the supply of goods would be eligible for refund of TED in terms of paragraph 8.3(c) of the FTP provided the recipient of the goods does not avail of CENVAT credit or rebate on such goods. 11.1 A declaration....
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....2011 as it was a period which fell prior to the issuance of the amendment notification No.4 dated 18.04.2013. Circular No.16, dated 15.03.2013, which is, portrayed as clarificatory in nature, to my mind, cannot impact the application(s) for refund pertaining to the period prior to 18.04.2013. 14.1 Importantly, it needs to be emphasized that the petitioner's entitlement to refund of TED will be governed by the relevant provisions of the FTP as obtaining in the relevant period for which the claim was made. The fact that the petitioner could or could not get refund under the CENVAT Credit Rules or under the provisions of the Central Excise Act is, in my view, not relevant for adjudicating upon the issue at hand. The Court, for adjudicating the issue at hand, is in my opinion, required to look at only the relevant provisions of the FTP. 15. I may also note that the petitioner has contended that it was not possible for it to avail of exemption from Central Excise Duty under the notification No.22/2003-CE, dated 31.03.2003 till such time 100% EOU provides a CT-3 certificate. That being stated, in my opinion, it may not be necessary to deliberate on this aspect of the matter as at t....