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2018 (10) TMI 711

e Act and Rules - Held that:- The refund of TED claim in this case pertains to export and transaction prior to 15.03.2013. The crucial clarificatory circular was issued on that day. Two applications made in respect of sales to the EOUs (Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.) covered various periods prior to 15.03.2013. This aspect is of significance and appears to have completely lost sight off. The DGFT – as well as Central Excise Authorities have not principally denied that the supplies were made to EOUs (Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.). In these circumstances, the question is what constitutes the entitlement of such unit that supplied the goods to Export Oriented Units. - In the event, there is no dispute – as it appears to be having regard to the pleadings – that the supplies were made to EOU/EHTP/STP/BTP (categorically spelt out in 8.2). Benefit of deemed export under para 8.3 i.e. advance authorization [clause (a)], deemed export drawback [clause (b)] or exemption from TED – in case of supplies made against International Competitive Bidding (ICB) or in other case of refund of TED. Clause (c) accrues to the concerned party i.e. supplier to .....

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t DGFT in respect of supply of tin containers to Vimal Agro Products Pvt. Ltd. against payment of Terminal Excise Duty (TED) during January 2012 to March 2013 i.e. prior to the issue of Circular No.16 dated 15.03.2013. This application was returned. Subsequently, another refund application (covering the period April, 2012 to January, 2013) made in respect of TATA Coffee Ltd. too was not taken into consideration. The petitioner then applied refund claim with Central Excise Department for the same on 11.03.2014. The Dy. Commissioner of Excise thereafter issued a show cause notice on 01.10.2014 proposing to disallow the refund claim, which was contested. The refund claim was rejected by the excise authority by order-in-original dated 29.05.2015. Aggrieved, the petitioner approached the Dy. Commissioner in appeal, which was rejected on 16.11.2016. The petitioner unsuccessfully approached the CESTAT, which in its Chandigarh Bench, rejected the appeal. 3. It is contended by Mr. R. Krishnan, Advocate on behalf of the petitioner that the claim made by the excise authorities was by way of an alternative as the DGFT primarily was responsible for the refund of TED paid. On the contention of D .....

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ect 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 also seem to have suggested that the petitioner should approach the DGFT for appropriate relief or clarification. Neither of the authorities dispute that the petitioner supplied goods to the EOU at the relevant time. Its entitlement, therefore, was defined in terms of the existing policy, i.e. refund in terms of paras 8.2, 8.3, 8.4 and 8.5 of the 2009 policy as discussed above. That a subsequent amendment was made to the existing regime which in effect liberalized the position further and exempted 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 .....

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to pay duty and claim refund. 11. That para 8.3(c) of FTP 2009-14, provides for benefit of the Terminal Excise duty (TED). This covers both - TED refund as well as TED exemption, as applicable for different types of cases. TED refund is allowed where TED exemption is not available. The Respondent submit that these provisions have been clarified vide Policy Circular No.16 dated 15.03.2013 issued by DGFT. The Respondents also submit that this policy circular has not introduced any new conditions/provisions, it has merely clarified the provisions of Para 8.3(c) of FTP-2009-14, which has already been in existence. 12. That none of the provisions laid down in the Handbook of the Procedure or the Foreign Trade Policy permits an exporter to make a choice on the method of seeking benefit regarding the TED. It is no where mentioned that the exporter may first opt for the payment of TED and thereafter he may seek refund of the same. TED exemption or refund is to be taken as provided for in FTP 2009-14, by reading various provisions of FTP 2009-14, in a harmonious manner. 13. It is also admitted that Para 8.3(c) extends the benefits under deemed exports for the supplies which qualify as deeme .....

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Supply of goods to EOU/STP/EHTP/BTP; (c) Supply of capital goods to EPCG Authorisation holders; (d) Supply of goods to projects financed by multilateral or bilateral Agencies/Funds as notified by Department of Economic Affairs (DEA), MoF under International Competitive Bidding (ICB) in accordance with procedures of those Agencies/Funds, where legal agreement provide for tender evaluation without including customs duty; (e) Supply of capital goods, including in unassembled / disassembled condition as well as plants, machinery, accessories, tools, dies and such goods which are used for installation purposes till stage of commercial production, and sparesto extent of 10% of FOR value to fertilizer plants; (f) Supply of goods to any project or purpose in respect of which the MoF, by a notification, permits import of such goods at zero customs duty; (g) Supply of goods to power projects and refineries not covered in (f) above; (h) Supply of marine freight containers by 100% EOU (Domestic freight containers manufacturers) provided said containers are exported out of India within 6 months or such further period as permitted by customs; (i) Supply to projects funded by UN Agencies; and (j .....

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