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2016 (11) TMI 623 - MADRAS HIGH COURT

2016 (11) TMI 623 - MADRAS HIGH COURT - TMI - Refund of terminal excise duty (TED) - Supply of manufactured goods to 100% EOU - Deemed export - Denial in terms of the provisions of the Foreign Trade Policy 2009-14 framed under the Foreign Trade (Development and Regulation) Act, 1992 - whether the petitioner is entitled for refund of the Terminal Excise Duty? - the decision in the case of KONDOI METAL POWERS MFT. CO. PVT. LTD., v. UNKON OF INDIA [2014 (2) TMI 773 - DELHI HIGH COURT] referred - He .....

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ner's refund Application and pass appropriate orders, within a period of three months - no necessity to test the correctness of the Policy - appeal allowed - decided in favor of appellant. - W.P.Nos.23507 to 23509 of 2014 & M.P.No.1 & 2 OF 2014 in W.P.No.23509 of 2014 - Dated:- 24-10-2016 - T. S. Sivagnanam, J. For the Petitioner : Mr. P. S. Raman,Sr.Counsel for Mr.Lakshmikumaran For the Respondents : Mr. J. Madanagopal Rao, Mr.V.Sundareswaran ORDER Heard Mr.P.S.Raman, learned Senior Counsel, ap .....

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ioning the Policy Circular No. 16 dated 15.03.2013. 3. The issue which falls for consideration is as to whether the petitioner is entitled for refund of the Terminal Excise Duty. The fourth respondent namely the Commissioner of Central Excise, has taken a stand that the petitioner is not entitled for refund. However, the claim for refund has been rejected by the third respondent by an order dated 13.08.2013, by which the petitioner's Applications have been returned, by referring to the Polic .....

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ed against the Advance Authorisation; supply of goods under ICB and supply of goods to EOUs, no refund of TED should be provided by the Regional Authorities and the DGFT, because such supplies are ab-initio exempted from payment of excise duty. 4. Though the petitioner has challenged the Circular No.16, during the course of arguments, the learned Senior Counsel appearing for the petitioner would submit that the petitioner would give up the challenge to the Policy Circular and would not seriously .....

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dent/Commissioner of Central Excise, pointed out that the Policy Circular has been upheld by the Hon'ble Division Bench of the High Court of Bombay in the case of SADOKZ PVT LTD., v. THE UNION OF INDIA AND ORS [2016-TIOL-1753-HC-MUM-CUS]. At this stage, it would be relevant to point out that some what an identical issue was considered by this Court in the case of RAJA CROWNS AND CANS PVT. LTD., v. UNION OF INDIA ANDORS [2015 (310) E.L.T.40(Mad.)]. In the said Writ Petition, the prayer sought .....

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INDIA [2014 (302) E.L.T. 209(Del), allowed the Writ Petition. At this stage it would be beneficial to refer to the operative portion of the order in RAJA CROWNS AND CANS PVT. LTD., which reads as follows: 9. After hearing the learned counsel for the parties and perusing the materials placed on record, it is seen that an identical set of facts, the Division Bench of the Delhi High Court took a decision in favour of the manufacturer. In fact, in the said case arose out of a decision taken pursuan .....

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the Judgment: 8.It would thus be seen that supplies made to EOUs in terms of para 8.2(b) are entitled to be regarded as deemed exports. The benefits for deemed exports include inter alia exemption from TED where supplies are made against ICD (a term which means International Competitive Bidding ). In the present case, concededly, the petitioner did not make any supplies against the ICD. Therefore, it would be covered by latter part of para 8.3(c), i.e. Cases where refund of TED will be given. Th .....

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d to the benefit of refund in view of some clarification given by the Policy Interpretation Committee, in its meeting of 04.12.2012 to the effect that refund of CENVAT credit provisions are available under Excise rules and CENVAT rules which should be availed of rather than claiming refund . This reasoning appears to have prevailed with the Policy Relaxation Committee as well in this case. This Court is unable to comprehend the rationale of the decision of the second and third respondents who al .....

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payment of TED altogether cannot surely be a reason for denying the scheme for refund of payment already made. The Court also is unable to see the reason why the respondents were of the view that refund claim or benefit under the CENVAT regime under the Central Excise Act or the other statutory schemes framed under it is available. In this Court's opinion, that regime operates in its own terms and is independent of the rights and liabilities of the petitioner and the respondents under the i .....

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ass appropriate orders in accordance with the 2009 policy in respect of the petitioner's refund claims made through its applications dated 29.08.2012 and 16.11.2012 within three months from today. The writ petition is allowed in the above terms. No costs. 10. In the light of the above finding, it is held that the issue involved in this writ petition is covered by the decision of the Delhi High Court and since the case before the Delhi High Court arose out of the order which was passed pursua .....

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