Home Case Index All Cases Customs Customs + HC Customs - 2018 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (7) TMI 868 - HC - CustomsRefund of Terminal Excise Duty (TED) - Whether the petitioner who has manufactured and supplied goods (after payment of excise duty via the CENVAT credit route) to a 100% Export Oriented Unit (EOU) is entitled to claim refund of Terminal Excise Duty (TED)? Held that:- 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, 2011 to September, 2011 despite PRC’s earlier decision of 04.12.2012, the third application for the quarter October, 2011 to December, 2011 was rejected despite the facts and circumstances of the case being pari materia with other two quarters. The 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. 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 not relevant for adjudicating upon the issue at hand. The Court, for adjudicating the issue at hand required to look at only the relevant provisions of the FTP. The argument that since excise duty was not paid via cash but was paid by utilizing the CENVAT credit route and hence, the petitioner would not be entitled to claim refund is unsustainable as there is no bar in law in paying duty by utilizing CENVAT credit. The impugned communication dated 21.04.2016, issued by respondent no.3, whereby the petitioner’s claim for refund was declined is set aside - petition allowed - decided in favor of petitioner.
|