2015 (7) TMI 393 - HC - Customs

Refund of TED - Deemed export - Jurisdiction to claim refund is Central Excise or DGFT - Terminal Excise Duty (in short the TED) has been paid by the petitioner - petitioner s request for refund of the TED has been evidently rejected by the JDGFT- Held that - insofar as the prayer (a) is concerned the same cannot be granted; not for the reason that the petitioner does not have a case but for the reason that it seeks setting aside of a file noting. It is not disputed by the petitioner before me that the impugned file noting has not been formally communicated to the petitioner. A decision not communicated cannot be assailed by instituting an action in court. 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. Joint Director General of Foreign Trade will examine the case of the petitioner and pass a suitable order thereafter.

Summary

Issues:
Refund of Terminal Excise Duty under Foreign Trade Policy for Deemed Exports.

Analysis:
1. The petitioner supplied boiler components to NTPC under International Competitive Bidding (ICB) and paid Terminal Excise Duty (TED).
2. The petitioner claimed benefits of "Deemed Exports" under the Foreign Trade Policy (FTP) for the period 2009-2014.
3. Despite moving several applications, the petitioner did not receive a formal order regarding the refund of TED.
4. File notings indicated rejection of the refund requests, citing policy circulars and court judgments.
5. The court reviewed the notings made by the Joint Director General of Foreign Trade and considered the arguments presented by both parties.
6. The petitioner argued that since exemption was available regarding TED, the refund option should still be considered.
7. The court referred to previous judgments and found that the petitioner's case for refund was valid under the FTP provisions.
8. The court emphasized the importance of formal communication of decisions and noted that until rejection is communicated, the court cannot intervene.
9. It was observed that there was ambiguity in the decision-making process, and the respondent should pass a clear order and communicate it to the petitioner.
10. The court clarified that the circular based on administrative interpretation did not need to be struck down, as the petitioner had the right to seek a refund from the concerned departments.
11. Respondent No.3 was directed to re-examine the petitioner's case and pass a suitable order within two weeks, ensuring proper communication to the petitioner.
12. The petitioner was given the liberty to re-file the application for refund within two days, and the decision timeline of two weeks would start thereafter.
13. The petition was disposed of with these directions, emphasizing the need for expedited decision-making and clear communication of orders to the petitioner.