TMI Blog2015 (8) TMI 292X X X X Extracts X X X X X X X X Extracts X X X X ..... or refund in terms of provisions of FTP, 2009-2014 – Appeals disposed off – Decided against Revenue. - LPA No. 192/2015, LPA No. 196/2015 - - - Dated:- 28-7-2015 - G. Rohini, CJ And Jayant Nath,JJ. For the Petitioner : Mr. Sanjay Jain, ASG with Mr. Sanjeev Narula, CGSC, Mr. Ajay Kalra, Adv For the Respondent : Mr. Sujit Ghosh with Ms. Kanupriya Bhargava Ms. Pragya Awasthi, Advs JUDGMENT Ms G. Rohini, Chief Justice 1. These matters being inter-linked are heard together and disposed of by this common judgment. 2. The respondent in both the appeals, i.e. M/s Alstom India Limited is a company engaged in setting up of Power Plants including project engineering, procurement, construction and commissioning for its customers and supply of goods to various contractors and project authorities. The said company (hereinafter referred to as the writ petitioner ) filed W.P. No. 1331/2015 pleading that M/s National Thermal Power Corporation (NTPC) which is engaged in the project of setting up a Super Thermal Power Projectin the State of Bihar awarded a contract to BHEL for the supply of steam generated package by following the procedure of International Competitive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chapter 8 specifically provides for deemed exports specified therein with reference to those transactions in which though the goods supplied do not leave the country, supplies made to the projects specified therein are treated equivalent to exports granting certain fiscal benefits. As per Paragraph 8.2(g) of the Foreign Trade Policy (FTP), the supply of goods to power projects and refineries under procedure for International Competitive Bidding are qualified as deemed export . Paragraph 8.3 of FTP provides for various benefits available to the deemed exports including exemption from Terminal Excise Duty (TED) where supplies are made against International Competitive Bidding (ICB) vide Clause (c) of Paragraph 8.3. It also provides for refund of terminal excise duty in other cases. For ready reference, Paragraph 8.3(c) of the Foreign Trade Policy may be reproduced hereunder: 8.3(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 man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad 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. 18. In view of this position, I do not see any necessity of dealing with the circular dated 15.3.2013. 19. Keeping in mind the foregoing discussion and the judgments referred to above, respondent No.3, will examine the case of the petitioner and pass a suitable order thereafter. 10. As stated above, in pursuance of the order of this Court in W.P. No.1331/2015, DGFT passed the order dated 24.02.2015 rejecting the claim of the writ petitioner for refund of the TED stating that in view of the amended FTP exempted categories of supplies are not eligible for refund of the TED paid. Challenging the said order, the writ petitioner filed W.P. No.2344/2015 and the learned Single Judge by order dated 11.03.2015 set aside the rejection order dated 24.02.2015 and directed refund of TED to the writ petitioner within two weeks. 11. It is submitted by Shri San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nning Weaving Mills Co. Ltd. v. CCE 1998 (99) ELT 8 (SC); National Insurance Co. Ltd. v. Smt.Saroj Ors. (2009) 13 SCC 508; Kadi Municipality v. New Chhotalal Mills Company Ltd. AIR 1965 Guj. 293; M.S.Gill v. Chief Election Commissioner, (1978) 1 SCC 405; Gem Sanitary Appliances Pvt. Ltd. v. Chief Commissioner Income Tax Delhi - IV Ors. (2012) 342 ITR 238 (Delhi); Oryx Fisheries Private Ltd. v. Union of India 2011 (266) ELT 422 (S.C.). 14. On merits, it is contended by the learned counsel that refund cannot be held to be impermissible under law since either FTP or the Foreign Trade (Development and Regulation) Act, 1992 (for short the FTDR Act ) does not expressly prohibit refund of TED on the ground that the excise duty has been paid through CENVAT Credit Account. In support of the said submission, the learned counsel relied upon Commissioner of Income Tax v. Nufoam Industries, (2001) 252 ITR 697 Gujarat. Placing reliance upon Mohd. Ali Khan v. CWT,AIR 1997 SC 1165, the learned counsel further contended that since the legislative intent to refund the TED in respect of the exempted supplies is clear from the language of Para 8.3(c) of the FTP, the appellants are bound by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to implementation of the policy has to be resolved/clarified by DGFT. In the light of the power expressly conferred by the statute for carrying out the FTP, it appears to us that the question whether TED paid for the supplies made against ICB, i.e., an exempted item, can be refunded or not is a matter which requires consideration by the DGFT in accordance with law on proper interpretation of the provisions of the FTP. No doubt, the decision taken by the DGFT is amenable to judicial review, however, even before a decision is taken by the DGFT, in our considered opinion, the learned Single Judge ought not to have directed the statutory authority that the decision be taken in a particular manner. 18. Yet another aspect we have observed is that W.P.(C)No.1331/2015 was disposed of at the threshold in the absence of the counter. It is pointed out by the learned counsel for the writ petitioner/respondent before us that the counsel for the appellants himself opted to argue the petition without counter on the basis of the material placed on record. Thus, it is contended that it is not open to the appellants to urge new grounds at the appellate stage. 19. We found that in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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