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2016 (7) TMI 649 - GUJARAT HIGH COURT

2016 (7) TMI 649 - GUJARAT HIGH COURT - TMI - Terminal Excise Duty (TED) refund - SEZ unit - Claim of refund of duty involved in procurement of High Speed Diesel (HSD) - HSD is being used for various operations in SEZ unit (Dahej Special Economic Zone) - Jurisdiction - Assistant Commissioner, Central Excise & Customs, Bharuch returned the refund application only on the ground that the factory of the petitioner is not under its jurisdiction. - Thereafter, the petitioner company approached the Dev .....

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laim on the ground that the unit of the petitioner is not situated within the SEZ, and thus, he is not having jurisdiction to entertain the refund claim. In view of the Division Bench judgment of this Court with which we are in agreement, such application for refund ought to be considered by the competent authority under the Customs Act alone. - Assistant Commissioner, Central Excise & Customs, Bharuch Division directed to consider the refund applications filed by the petitioner on its own m .....

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mpany which is incorporated under the provisions of the Companies Act, 1956 with the following prayers: (A) To quash the communication/decision dated 08.02.2013 (Annexure-I) of the Respondent No.2- Development Commissioner, Kandla SEZ and thereby grant the 11 refund applications all dated 12/12/2012 (Annexure-16 collectively) (B) To stay, pending the hearing and final disposal of the present Special Civil Application, the communication/decision dated 08.02.2013 (Annexure-1) of the Respondent No. .....

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xcise and Customs and to direct the respondent No.4-Assistant Commissioner of the Central Excise and Customs or such other authority as this Honourable Court may deem fit and proper, to decide all the 11 refund claims/applications dated 12.12.2012 of the petitioner company which were the subject matter of the impugned decision dated 8.2.2013 (Annexure-1) of the respondent No.2- Development Commissioner, Kandla Special Economic Zone. 3. The petitioner company is having its unit located at Dahej S .....

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including excise component in their basic price. In view of the provision under Section 26 of the Special Economic Zones Act, 2005 (hereafter referred to as the SEZ Act ), the petitioner company is entitled to refund of excise duty. The petitioner company made a refund claim of ₹ 57,39,690/- vide refund application dated 29.6.2012 before the Assistant Commissioner, Central Excise & Customs, Bharuch Division. The said application for refund is returned vide letter dated 19th July, 2012 .....

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Terminal Excise Duty (TED) refund. 5. Heard Mr. S.N.Soparkar, learned Sr. Advocate assisted by Mr. A.S. Vakil, learned counsel for the petitioner, Mr. Nikunt Raval, learned counsel appearing for respondent nos. 1 and 3 and Mr. Akshay Vakil, learned counsel for respondent no.5. 6. Learned counsel for the petitioner in this case submits that under the provisions of Section 26 of the SEZ Act, the petitioner company is entitled to refund of excise duty. It is submitted that in absence of any special .....

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ued to hold jurisdiction to entertain the application, the learned counsel for the petitioner placed reliance on a Division Bench judgment of this Court rendered in Special Civil Application No. 11876 of 2014 on 20.11.2014. 7. Learned counsel for the respondent no.1 Union of India on instructions submitted that no other mechanism is provided delegating powers to any authority to consider the refund claims of the units situated in the SEZ. Whether the petitioner company is entitled to refund of e .....

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ent, while considering the validity of the letter dated 1.11.2012 issued by the Ministry of Finance, the Division Bench of this Court has held as under: 18. Under the circumstances, in our opinion, the directives issued by the Ministry of Finance in its letter dated 1.11.2012 are invalid and would have no force of law. It is declared that unless proper mechanism is framed under the SEZ laws and statutory provisions are enacted/amended, the Commissionerate of Customs would continue to hold the au .....

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l such applications shall relate back to the first presentation before the Customs authority. The period of limitation for presenting such application and computation of interest in case eventually the refund is granted, shall be reckoned from such date. 9. In this case, the the competent authority, that is, Assistant Commissioner of Central Excise & Customs, Bharuch Division has not considered the claim of the petitioner on merits and returned the claim on the ground that the unit of the pe .....

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