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2020 (3) TMI 1012 - HC - CustomsRefund of Terminal Excise Duty (TED) - Rejection of refund contending that as supplies against ICB are ab initio exempted from payment of excise duty, the same are ineligible for refund - applicability of relevant FTP 2009-14. HELD THAT:- By virtue of the notification No. 4 dated 18th April, 2013, a condition was incorporated stipulating that categories of supplies which are exempt ab initio would not be eligible to receive refund of TED. In the present case, the supplies were made during the period from 15th December, 2009 to 10th February, 2011 and thus during the relevant period, there was no such condition in the FTP. It may also be noted that the aforenoted notification is substantive and not clarificatory and therefore cannot be applied retrospectively. Thus, even in this situation, in our view, the petitioner is entitled to refund of TED under para 8.3 (c) of the FTP as the exemption was not availed by the petitioner and it opted to pay the excise duty. It appears that DGFT in view of policy circular No. 11/2015-20 dated 23rd July, 2018, has now identified the issue viz-a-viz the non-refund of excise duty paid by the suppliers. This circular in our view now recognizes the provisions of the FTP in the right perspective, that exemption from TED was not available for certain supplies even though the same were under ICB. There is thus no impediment in granting the refund to the Petitioner - In view of the above discussion, the impugned circular has no application to the case of the petitioner and it is lawfully entitled to refund of TED in terms of para 8.3 (c) read with para 8.4.4. (iv) of the FTP. The impugned orders/letters denying refund of TED are hereby quashed. The respondents are directed to process petitioner’s claim for TED refund in respect of the applications enumerated in paragraph 3 of this order and release the amounts which they are entitled to in respect of the supplies made hereunder within a period of eight weeks from today - Petition allowed.
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