TMI Blog2019 (2) TMI 1316X X X X Extracts X X X X X X X X Extracts X X X X ..... roversy and the reliefs sought it can be said that part cause of action can be said to have arisen at New Delhi however, at the same time when the goods in question, on which the duty drawback is claimed, were used in the project in Gujarat, it can be said that part cause of action has also arisen in Gujarat and therefore, it cannot be said that this Court has no territorial jurisdiction. Under the circumstances, preliminary objection/s raised on behalf of the Union of India that this Court has no territorial jurisdiction is hereby overruled. Rejection of the claim of the petitioner of deemed export drawback on the goods imported by the petitioner, for supply of off-shore equipments and spare parts to the petitioner, supplied by one ‘Alstom’, which came to be used by the petitioner to set up a power project - Held that:- While considering the benefits of deemed export duty drawback the conditions to be satisfied are that the goods supplied are manufactured in India; supply of goods are to the power projects and that the benefits of deemed export shall be available under Paragraphs (d), (e), (f), (g) of Chapter 8.2, only if the supply is made under procedure of ICB i.e. Internati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ‘manufactured in India’, the claim of the petitioner of deemed export drawback is rightly rejected. It is also required to be noted at this stage that in the present case the supplier is Alstom and the petitioner has imported the goods. Therefore, considering Clause/Chapter 8.4.4(i) in respect of the supplies made under Paragraphs 8.2(g) of FTP, i.e. supply of goods to power projects, the supplier shall be entitled to the benefits listed in Para 8.3(b) namely deemed export drawback. Therefore also, the petitioner not being the supplier shall not be entitled to the benefit of the deemed export drawback under Para 8.3(b) as claimed by the petitioner. The impugned decision of the Respondent No. 3 rejecting the claim of the petitioner of deemed export drawback and the impugned minutes of meeting of the Policy Interpretation Committee being PIC No. 10/AM-11, dated 15-3-2011 are absolutely in consonance with the Foreign Trade Policy (2009-2014) and the petitioner has been rightly denied the benefit of deemed export duty drawback - petition dismissed - decided against petitioner. - R/Special Civil Application No. 15706 of 2011 - - - Dated:- 29-6-2018 - M.R. Shah and Sonia Goka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at one of the power plants owned and operated by the petitioner is 135 MW capacity Gas based Combined Cycle Power Plant at Utran, Surat, Gujarat. That the petitioner sought to explain the existing power plant in order to general additional 370 MW of power. It is the case on behalf of the petitioner that for the purpose of above expansion, the petitioner sought to procure equipment, facilities, other material etc. by way of imports. For the purpose of selecting vendor for the above supplies i.e. equipment, facilities, other material etc. the petitioner followed the International Competitive Bidding process. That pursuant thereto the petitioner entered into a contract with the successful bidder Alstom (Switzerland) Limited, Brown Boveri Strasse 7, CH-5401 Baden, Switzerland (hereinafter referred to as Alstom ) dated 27-4-2007 for the supply of off-shore equipment and spare parts to the petitioner for expansion of existing power project. It is the case on behalf of the petitioner that the scope of the contract was for the supply of equipments and spare parts which include GT Fields Assembly, HP Feed Water Pumps, Spare parts etc. It is the case on behalf of the petitioner that in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 furnished the bank details for the purpose of receipt of pending drawback claims. 2.8 It appears that thereafter a meeting of the PIC was held, under the Chairmanship of the Respondent No. 2 - DGFT, New Delhi, in order to decide on issues relating to grant of benefits under deemed exports. That the PIC thereafter had decided not to grant deemed export benefit in cases where the bill of entry in the name of the project authority. It is the case on behalf of the petitioner that as such there is no provision in the FTP for denying grant of deemed export benefit in case of imports where the bill of entries is in the name of project authority. It is the case on behalf of the petitioner that inability of the respondents to grant large number of pending drawback claim owing to inadequate budget provision appears to be the sole basis for the above decision. 2.9 That thereafter the petitioner had received the impugned letters, all dated 21-3-2011, rejecting the deemed benefit drawback claimed by the petitioner in which Para 3 of the impugned minutes to hold that the petitioner is ineligible for deemed export benefits has been referred. 2.10 Feeling aggrieved and dissatisfied with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Anr. reported in AIR 2002 SC 126 = 2001 (134) E.L.T. 596 (S.C.). 4.2 It is submitted that in the aforesaid decision the Hon ble Supreme Court has held that the question of jurisdiction goes to the root of the matter and therefore, this Court would not have any jurisdiction to entertain or to consider the present petition. Making above submissions and relying upon above decisions, it is requested to dismiss the present petition for want of territorial jurisdiction. 4.3 On the aforesaid preliminary objection raised with respect to the territorial jurisdiction of this Court, it is submitted by Shri Mihir Thakore, Learned Counsel appearing on behalf of the petitioner that in the present case the following facts would clearly demonstrate that the cause of action have arisen in the State of Gujarat. (1) the registered office of the petitioner is in Vadodara; (2) the site where the power project was assembled, fabricated, manufactured is in Uttran, Surat District; (3) the advertisement published by the petitioner seeking International Competitive Bids (ICB) from various contractors provided as under : The bid documents may be collected from GSE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt petition. Submissions on merits on behalf of the petitioner and the respondents 5. Shri Thakore, Learned Counsel appearing on behalf of the petitioner has vehemently submitted that the petitioner is entitled to deemed export drawback as per Chapter 8 of the FTP 2009-14. It is submitted that as per the provisions of Chapter 8 of the FTP 2009-14, the supplies to power projects would qualify as deemed export subject to fulfillment of the following conditions : (1) That the supplies should be made under the procedure of International Competitive Bidding. (2) That the goods supplied to the project should be manufactured in India. 5.1 It is further submitted that admittedly, the petitioner has satisfied both the above conditions as under : (1) Admittedly, the petitioner have duly followed the procedure under the ICB for procurement of goods viz. Boiler, Turbine and Generator from Alstom. The respondent have not disputed the ICB procedure; (2) The condition of manufacture in India is also satisfied inasmuch as: The imported BTG is taken site where the installation, fabrication etc. takes place resulting in emergence of a power project. It is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inputs of the power project. It is submitted that the said Norms Committee considered the power project i.e. 3 MW Hydro-electric Power Generation Plant as the export product for the purpose of granting deemed export benefit viz. Advance authorization to the goods imported by the project authority. It is submitted that thus historically the respondents have been granting drawback benefit to direct imports of BTG by the project authority. 5.5 Now, so far as challenge to the impugned minutes of the PIC dated 15-3-2011 more particularly Para 3 of the minutes is concerned, it is vehemently submitted by Shri Thakore, Learned Counsel appearing on behalf of the petitioner that the impugned PIC minutes amounts to adding a new ineligible condition for grant of deemed export benefit under Chapter 8, which does not exist. It is submitted that as per Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as FTDR ) read with Para 1.13 of the FTP, the Central Government alone has been empowered to amend or legislate provisions in respect of the FTP. It is submitted that therefore impugned PIC minutes are liable to be set aside. 5.6 It is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re duly approved by Respondent No. 3. It is submitted that the said criterion has been introduced for the first time on 15-3-2011 by the impugned PIC minutes. It is, therefore, submitted that the said new ineligibility criteria amounts to adding a new condition to the existing policy by the Respondent No. 2 (DGFT) which is clearly ultra vires the power conferred on to the Respondent No.2 under the FTDR and the FTP. Thus, the impugned PIC minutes and the subsequent rejection letters all dated 21-3-2011 are liable to be struck down. 5.11 It is further submitted by Shri Thakore, Learned Counsel appearing on behalf of the petitioner that even otherwise the impugned decision of the Respondent No. 3 rejecting the claims of the petitioner of export drawback, impugned in the petition, is bad in law and contrary to the provisions of Section 16 of the Foreign Trade (Development and Regulation) Act, 1992 (hereinafter referred to as Act, 1992 ). It is submitted that in the present case earlier the Respondent No. 3 itself informed the petitioner that the application has been processed after removal of the deficiencies and the case has been admitted for payment and the case has riped for pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the very Respondent No. 3 is estopped from denying the deemed export drawback in terms of principles of promissory estoppel and legitimate expectation of the petitioner. 5.13 Without prejudice to the aforesaid submissions and in the alternative it is submitted by Shri Thakore, Learned Counsel appearing on behalf of the petitioner that in any case the impugned PIC minutes can be made effective only prospectively. It is submitted that the said new criteria cannot be applied retrospectively. It is submitted that therefore and accordingly, the impugned rejection letter, all dated 21-3-2011 are liable to be set aside. In support of his above submissions Learned Counsel appearing on behalf of the petitioner has heavily relied upon Para 21 of the decision of the Bombay High Court dated 21-7-2014 in the matter of Patel Engineering v. Union of India in Writ Petition No. 6846/2012 and Writ Petition No. 8288/2012 [2014 (309) E.L.T. 469 (Bom.)] in which it is held by the Bombay High Court that the interpretation of the FTP placed by the PIC vide its MOM dated 15-3-2011 would not be applicable in cases pertaining to supplies made prior to 15-3-2011. It is further submitted by Learned Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se duty benefit in respect of various domestic supplies for the project. It is further submitted that the petitioner have not claimed deemed export benefit in respect of domestic supplies. 5.16 It is further submitted that the respondents have been continuously allowing deemed export duty drawback benefit to various mega and non-mega power project owners in respect of direct imports by the project owners on the basis of its own earlier circular dated 5-12-2000. The impugned PIC minutes, which proposes to insert a new ineligibility criterion is restrictive in nature and is, therefore, liable to be applied prospectively. It is, therefore, submitted that the orders dated 21-3-2011 issued by the Respondent No. 3 refusing the grant deemed export duty drawback to the petitioner by applying the impugned PIC minutes retrospectively is bad in law and is liable to be quashed. 5.17 Now, so far as the contention on behalf of the respondents that deemed export benefit under Chapter 8 of FTP is not available to the recipient of the supplies, it is vehemently submitted by Shri Thakore, Learned Counsel appearing for the petitioner that for the aforesaid the respondents have reasoned that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Switzerland) Ltd.; (b) Onshore supply of goods by Alstom Projects India Ltd.; (c) Onshore services by Alstom Projects India Ltd. That the petitioner agreed for the above arrangement and issued letter of intent for each of the above activities. It is submitted that accordingly the petitioner entered into three different contracts for supply and services with Alstom (Switzerland) Ltd. and Alstom Projects India Ltd. and in respect of Offshore supplies being BTG, the said equipments were supplied by Alstom (Switzerland) Ltd. and sold to the petitioner on High Sea Sales basis. It is submitted that the BTG was cleared by Alstom Projects India Ltd. (under an authorization from the petitioner) from the port and transported to site for installation. It is further submitted that the Customs duty in respect of the imported BTG was borne and paid by the petitioner. That at the site, Alstom Projects India Ltd. used the BTG and other domestically procured goods as inputs and constructed/fabricated a power plant and supplied the said power plant to the petitioner. In this regard, reference is made to circular dated 5-12-2000 and Norms Committee decision dated 16-9-2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been admitted for payment; (b) the case is riped for payment and the cheques would be issued towards settlement of the claims upon receipt of the funds from the DGFT. It is further submitted that while the above approval orders were pending disbursement or execution, the MOM was issued wherein it was, inter alia, decided that in case of imports where the bill of entry is in the name of the project authority, deemed export benefit would not be available. It is further submitted that immediately the Respondent No. 3 (very same officer which approved the duty drawback) passed the impugned rejections orders vide letters viz. 5 /40 /81 /89 /AM-11 /Mics/CLA/778187; File No. 5/40/81/99/AM-11/Mics./CLA/778174; File No. 5/40/81/102/AM-11/Mics. /CLA/778179; File No. 5/40/81/224 /Mics. /CLA/778332 and File No. 5/40 /81/15 /Mics./CLA/778183, all dated 21-3-2011, rejecting the deemed benefit drawback claim of the petitioner. It is submitted that the said letters referred to Para 3 of the impugned MOM to hold that the petitioner is ineligible for deemed export benefits. It is, therefore, submitted that the Respondent No. 3 sought to re-determine the eligibility of the petitioner to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that apart from the above stated projects, no other projects are entitled to the deemed export benefit. It is, therefore, submitted that the object of specifying certain selected projects for granting deemed export status and further grant corresponding benefits is for the benefit of the project. The objective in such cases is not to provide benefit to supplier alone, as has been contended by the respondents. 5.23 It is further submitted that it has been further contended by the respondent that the benefit of deemed export duty drawback is applicable only in respect of supplies from domestic suppliers. In cases where supplies are made from outside India, the benefit is not allowed. It is submitted that the submission of the respondent is fallacious and is clearly contrary to the intent of the FTP. It is submitted that one of the conditions for granting deemed export duty drawback benefit is that the supplies to the project should be made under International Competitive Bidding procedure. The term International Competitive Bidding itself suggest that the supplies/supplier are not restricted to domestic supplies/supplier and even supplier could be a foreign supplier so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that the objective is to promote manufacturing in India. In this context, it is submitted that under Chapter 8, for the purpose of claiming the benefit the project authority are mandatorily required to follow the ICB process. The ICB process ensures that both domestic suppliers and foreign suppliers participate in the bidding process and the supplier quoting the lowest price would be selected. Thus, level playing field for domestic manufacturer is built in Chapter 8 of the FTP. 5.27 Now, so far as the contention on behalf of the respondents that under the Customs Act, complete exemption is provided only to Mega Power Project, whereas non-mega power project enjoys only concessional duty of basic custom duty and that the petitioner is attempting to claim complete exemption through the deemed export benefit route, which is not permissible is concerned, it is submitted by Shri Thakore, Learned Counsel appearing for the petitioner that the aforesaid has no merits whatsoever and is liable to be rejected. 5.28 It is submitted that Notification No. 21/2002 is a notification under Customs Act, which falls within the purview of Ministry of Finance whereas the Foreign Trade Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project there is no exemption from customs duty in respect of goods imported for such project is not a relevant consideration to deny the benefit. 5.30 It is further submitted that the concessional rate of duty of non-mega power projects under the customs notification is an unconditional benefit. Thus, the project authority availing the benefit of the said notification has the ability to import the capital goods from a vendor of its choice without any fetters on pricing etc. However, a Project owner desirous of availing the deemed export benefit of duty drawback under the FTP is mandatorily required to follow the ICB procedure and is required to grant contract to the lowest bidder. The Project owner under the FTP, desirous of claiming deemed export benefit, do not have the liberty of picking and choosing vendors of his own choice. Thus, it is submitted that there is a big difference between the benefit under the customs law and that under the FTP. 5.31 It is further submitted on behalf of the petitioner that DGFT is estopped from denying drawback in terms of principles of Promissory Estoppel and legitimate expectations of the petitioner. It is submitted that DGFT have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (206) E.L.T. 6 (S.C.) = 2008 (12) S.T.R. 206 (S.C.) 5.33 It is further submitted by Shri Thakore, Learned Counsel appearing on behalf of the petitioner that Central Government in exercise of its powers under Section 5 of the FTDR have vide Notification No. 1 (RE-2012)/2009-2014 dated 5-6-2012 amended the FTP Para 8.2(g) whereby supplies to non-mega power project was defined as deemed export, was deleted. It is submitted that thus by way of legislative action, the Central Government formally withdrew benefit of deemed export benefit to non-mega power project. It is submitted that in view of the above amendment the impugned PIC minutes to deny deemed export benefit to non-mega power project is nothing but an attempt on the part of the respondents to usurp the powers of the Central Government and confer upon themselves the power to legislate. It is submitted that therefore, the impugned PIC minutes are liable to be set aside. At the time when the matter was heard by this Court pursuant to the directions of the Hon ble Supreme Court of India dated 6-4-2015 in Transfer Petition (Civil) No. 429/2015, Learned Counsel appearing on behalf of the petitioner had reiterated what was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mining Chapter 10, Deemed Export 10.1 Deemed exports refers to those transactions in which the goods supplied do not leave the country. 10.2 The following categories of supply of goods by the main/subcontractors shall be regarded as Deemed Exports under this Policy, provided the goods are manufactured in India : (f) Supply of goods to any project or purpose in respect of which the Ministry of Finance, by a notification, permits import of goods at zero customs duty coupled with extension of benefits under this Chapter for domestic supplies; and (g) Supply of goods to Power, Oil and Gas sectors including refineries, not covered in (f) above Export Import Policy - 2002-2007 (w.e.f. 1-4-2002 - 31-3-2007) Chapter 9, Definitions 9.37 Manufacture means to make, produce, fabricate, assemble, process or bringing into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, re-packing, polishing, labelling, reconditioning, repair, remaking, refurbishing, testing, calibration, reengineering. Manufacture for the purpose of this policy also include agriculture, aquaculture, animal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (g) Supply of goods to power projects and refineries, not covered in (f) above The benefits of deemed export shall be available under Paragraph (f) and (g) only if the supply is made under the procedure of International Competitive Bidding Foreign Trade Policy - 2009-2014 (w.e.f. 1-4-2009 - 31-3-2014) Chapter 9, Definitions 9.37 Manufacture means to make, produce, fabricate, assemble, process or bringing into existence, by hand or by machine, a new product having a distinctive name, character or use and shall include processes such as refrigeration, re-packing, polishing, labelling, reconditioning, repair, remaking, refurbishing, testing, calibration, reengineering. Manufacture for the purpose of FTP shall also include agriculture, aquaculture, animal husbandry, floriculture, horticulture, pisciculture, poultry, sericulture, viticulture and mining Chapter 8, Deemed Export 8.1 Deemed exports refers to those transactions in which the goods supplied do not leave the country and payment for such supplies is received either in Indian rupees or in free foreign exchange. 8.2 The following categories of supply of goods by the main/subcontractors shall be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia s Foreign Trade. It is submitted that the goal of the new trade policy are to increase the productivity and competitiveness and to achieve a strong export performance. It is submitted that one of the objects is that such basic law, governing foreign trade must serve as an instrument to create an environment that will provide strong impetus to export. 6.2 It is submitted that FTP 2004-09 is framed as statutory policy framed in exercise of power conferred under Section 5 of the FTDR. It is submitted that Section 6(2) confers statutory power on the Director General to advise the Central Government in the formation of the foreign trade policy and it also provides that the Director General shall be responsible for carrying out the policy. 6.3 It is further submitted that the responsibility to carry out the policy envisaged statutorily by Section 6(2) clearly invests statutorily an Authority in the Director General of Foreign Trade to interpret the policy since interpretation of the policy is embedded in the function of carrying out the policy. 6.4 It is further submitted that the powers with which the Director General of Foreign Trade has been clothed under Section 6(2) are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntation of policy as conferred and mandated by Section 6(2) of the Act. It, therefore, necessarily follows on bare perusal of the statutory regime that the Director General of Foreign Trade has power to specify the procedure to be followed by a person who wants to be conferred with the benefit under the said policy. 6.7 It is further submitted that Chapter VIII titled as deemed export is a self contained code in itself. 6.8 It is further submitted that the said chapter defines what is the deemed export and in Para 8.1 clearly states that deemed exports refer to those transactions in which goods supplied do not leave the country and the payment for such supplies is received either in Indian rupees or in free foreign exchange. 6.9 It is further submitted that a bare perusal of Para 8.1 clearly reflects the statutory intent of link of deemed export with the supply of goods. It is submitted that it is further evident from Para 8.2 of the Foreign Trade Policy which says that the mentioned categories of supply of goods by main/sub-contractor shall be regarded as deemed export under the Foreign Trade Policy provided the goods are manufactured in India. 6.10 It is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear that this is an alternate to the benefits entitled under Para 8.3A. It is submitted that under Para 8.3C the entitlement is to the exemption from payment of terminal excise duty or in other words for refund of terminal excise duty. It is submitted that Para 8.4.4(i) provides that in respect of supplies made under Para 8.3D, F and G of Foreign Trade Policy supplier shall be entitled to benefits listed in Para 8.3A, B and C whichever is applicable. It is thus clear that it is the supplier who alone is entitled and eligible and not the person who is supplied with the goods, i.e. not to buyer or the importer. It is submitted that the petitioner is the person who is the recipient of the supply or the importer and, therefore, in view of Para 8.4.4(i), he is not eligible to claim any of the benefits. It is submitted that in Para 8.4.4(iv), it is clear that it is only the supplier who is eligible for benefits listed in 8.3-A and 8.3-B of the Foreign Trade Policy whichever is applicable. In fact, sub-Para (iv) of Para 8.4.4 merely elaborates the issues. 6.13 It is submitted that therefore the deemed export drawback benefit can only be claimed in relation to goods manufactured in I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 1995 shall apply mutatis mutandis to deemed export under Rule 16 of the Customs and Central Excise Duties Drawback Rules, 1995 even where an amount of drawback and interest, if any has been paid erroneously or if the amount which was paid is in excess of what is claimed in the entitlement, Claimant is duty bound on demand by the proper officer to repay the amount so paid erroneously or in excess and on failure of the claimant to repay the amount, it is recoverable in the manner laid down in Section 142(i) of the Customs Act, 1962. 6.18 It is submitted that the underlying object of the Foreign Trade Policy is to augment export and the fact that the transactions under present Foreign Trade Policy to be classified as deemed export, in itself postulates with the necessary ingredients as envisaged by the Statute for a transaction to be an export as defined under Section 2(e) has to necessarily exist. 6.19 It is submitted that Foreign Trade Policy is aimed to create manufacturing capability, value addition, employment opportunities and the underlying intent is to provide a level playing field to and conferindigenous manufacturers benefits on them and not upon a person who impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that this manufacture will speak in aid to a supplier or a contractor who has, for example, assembled the turbine which is final product on which benefit of deemed export under Chapter VIII are eligible to be granted cannot be fabricated, manufactured of produced, but for on the site. It is submitted that the inputs which go into such manufacture or the turbine are entitled to various benefits. In other words, the final product is turbine and not power project. It is submitted that the deeming fiction provided under Para 9.3.6 is to further the object of the policy which is to confer the benefits on the suppliers. In case instead of manufacturing it in his premises, it is either manufactured, commissioned or erected (i.e. the product) at the power plant site. It is trite law that any particular provision of a statute or policy will not be so interpreted to further the purpose and intent of the policy. 6.24 It is further submitted that the expression term of contract referred in the list of the dates by themselves are sufficient to indicate the disentitlement of the petitioner to claim benefits. It is submitted that Clause (h) at page 38 clearly states that the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and therefore, have to be made applicable from the very beginning. 6.28 Now, so far as the contention on behalf of the petitioner that the respondent No. 3 has no power to review its own decision and/or that the power to review has to be expressly conferred is concerned, it is submitted by Shri Raval, Learned Counsel appearing on behalf of the respondents that in the facts and circumstances of the present case, inasmuch as the power to review has to be expressly conferred only if there is an exercise of quasi-judicial power. It is submitted that the principle that the power to review must be conferred by statute either specially or by necessary implication is applicable only where the government exercise quasi-judicial powers vested in it by the Statute and not purely to administrative decision. In support of his above submissions, he has relied upon the decision of the Hon ble Supreme Court in the case of R.R. Verma v. Union of India reported in (1980) 3 SCC 402 (Para 5). It is submitted that in the aforesaid decision while considering the decision cited by the petitioner reported in AIR 1970 SC 1273, it was held that the principles laid down therein would apply where the gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in the case of State of Punjab v. Nestle India Ltd. reported in (2004) 6 SCC 465. He has also relied upon the decision of the Hon ble Supreme Court in the case of Hira Tikkoo v. Union Territory of Chandigarh reported in (2004) 6 SCC 765 by submitting that as held by the Hon ble Supreme Court in the aforesaid decision, where public interest is likely to be harmed, neither the doctrine of legitimate expectation nor estoppel can be allowed to be pressed into service by any citizen against the State authorities. Relying upon the decision of the Hon ble Supreme Court in the case of Jit Ram Shiv Kumar v. State of Haryana reported in (1981) 1 SCC 11, it is submitted that no bill of estoppel available to an authority from acting as per the law. 6.30 It is further submitted by Shri Raval, Learned Counsel appearing on behalf of the respondents that grant of benefit under a policy is only an incentive or concession and the beneficiary of an incentive or concession has no legally enforceable right against the government, except to enjoy the benefit of concession during the period of its grant. 6.31 It is further submitted that as per the settled proposition of law if manne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] is concerned, it is submitted that as such it is per incuriam. It is submitted that Section 5 of the FTDR confers power on the Central Government to formulate the Foreign Trade Policy and Section 6 of the said Act of 1992 deals with the appointment of the DGFT by the Central Government, who shall advise the Central Government in formulating the import export policy and shall be responsible for carrying out the said policy. Thus, the power to interpret/carrying out the policy confers the power to decide the same, therefore, it would be necessary for the Hon ble Court to take into consideration Paragraph 35 with Paragraph 39 of the judgment of Alstom India Ltd. v. Union of India in Special Civil Application No. 11031 of 2013. It is further required to be taken note of that the decision in interpreting the said Foreign Trade Policy does not amount to an amendment, cannot therefore have negative Article 14 of the Constitution of India. 6.36 It is respectfully submitted that the contention raised by the petitioner that the said decision of the DGFT amounts to exercise of powers under Section 16 is totally incorrect for the reason that if the Hon ble Court may consider the scope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PIC meeting that these claims are not admissible and was being submitted by various applicants absolutely wrongly. 6.39 Now, so far as the reliance placed upon the circular dated 5-12-2000 on behalf of the petitioner is concerned, it is submitted that as such the said circular shall not be applicable to the facts of the case on hand. It is submitted that even in the said circular it is specifically stated and mentioned that the supplies to the power project would clarify as deemed exports subject to fulfillment to all conditions out of which one condition is that the goods supplied to the project should be manufactured in India. It is submitted that admittedly in the present case the goods imported on which duty drawback is claimed are not manufactured in India. It is submitted that in a single goods which has been imported and used in the project are manufactured in India. It is submitted that on the contrary the Department of Revenue, Ministry of Finance vide its OM No. 605/27/2011-DBK, dated 8-4-2011 has clarified that; (1) The power plant was erected and commissioned by the EPC contractors on the project site on which the excise duty was not paid as the same is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. As observed hereinabove it is the case on behalf of the respondents that the dispute is with respect to rejection of the claim of the petitioner with respect to deemed export duty drawback, which as such have been rejected by the office of the Joint DGFT, New Delhi. It is the case on behalf of the respondents that the petitioner through its authorized signatory and through the office located at Gujarat Bhavan, New Delhi filed separate applications for seeking benefit of deemed export drawback. That even the claim for grant of duty drawback was filed before the Joint DGFT, New Delhi; that pursuant to the said applications/claims, impugned communications through the Foreign Development Officer, New Delhi was made from New Delhi; even PIC meeting was held at New Delhi and the impugned decision of the PIC/minutes of the meeting challenging the present petition is also from the New Delhi office; even the communication for rejection of the benefit has been made by the office, Joint DGFT, New Delhi; all the respondents in the present petition are having their offices at New Delhi. Therefore, relying upon the decision of the Hon ble Supreme Court in the case of Adani Export Limited ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the petitioner of deemed export drawback on the goods imported by the petitioner - for supply of off-shore equipments and spare parts to the petitioner, supplied by one Alstom , which came to be used by the petitioner to set up a power project. The petitioner applied to the Respondent No. 3 herein for claiming the deemed export drawback in respect of the Customs duty paid on the said imported equipments and spare parts as per the provision of Chapter 8 of the FTP. The said claims have been ultimately rejected by the Joint DGFT, New Delhi considering the decision of the PIC. 9.1 Number of submissions have been made by the Learned Counsel appearing on behalf of the respective parties. However, before considering the other submissions it will be appropriate first to consider whether the petitioner shall be entitled to the deemed export drawback as claimed in terms of provisions of Chapter 8 of the FTP or not? 9.2 It is the case on behalf of the petitioner that in terms of provisions of Chapter 8 of the FTP read with Circular dated 5-12-2010, the petitioner shall be entitled to the benefits of deemed export drawback inasmuch as (a) the supply of goods to the power project ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Authorization holder to a manufacturer holding another Advance Authorization if such manufacturer, in turn, supplies the product(s) to an ultimate exporter. 8.4.4(i) In respect of supplies made under Paragraphs 8.2(d), (f) and (g) of FTP, supplier shall be entitled to benefits listed in Paragraphs 8.3(a), (b) and (c), whichever is applicable against Advance Authorization/DFIA in terms of Paragraph 8.3(a) of FTP, supplier shall be entitled to Advance Authorization/DFIA for intermediate supplies. While considering the entitlement to the petitioner of deemed export drawback, definitions contained in Chapter 9 are also required to be referred to which are as under : 9.1 For purpose of FTP, unless context otherwise requires, following words and expressions shall have the following meanings attached to them. 9.22 Drawback in relation to any goods manufactured in India and exported, means rebate of duty chargeable on any imported material or excisable material used in manufacture of such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort of the equipments and spare parts which include GT Fields Assembly, HP Feed Water Pumps, Spare parts etc. which is / are used directly used in the power project. The reliance paced upon Clause 8.2(g) by the petitioner that supply of goods to power projects shall be regarded as deemed export under the FTP is concerned, it is required to be noted that providing the supply of goods to the power projects must be the goods which are manufactured in India as per the definition contained in Chapter 9.36 of the FTP. 9.4 The underlying intent and idea to classify certain transactions to be deemed export is to give them a status of export so as to make eligible or a manufacture of such goods including contractor or subcontractor to get benefit of duty draw back and thereby compete with persons who would supply imported goods. The idea seems to be to give the benefit to the local manufacturers and when the locally manufactured goods are supplied, then they are deemed to be export and thereby idea is to provide level playing field to permit such manufacturer/supplier to drawback duty supplied by him on any inputs of such goods which are ultimately supplied to non-mega power project. Eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erned, the said decision shall not be applicable to the facts of the case on hand. What is required to be considered is whether the goods imported and supplied on which the deemed export drawback is claimed, can be said to be manufactured in India is required to be considered considering the definition of manufacture contained in Chapter 9.36 to be read with Chapter 8. In the case before the Hon ble Supreme Court, the question was whether assembly - fixing of steam turbine and alternator and in coupling and aligning them in a specific manner to form a turbo alternator amounts to a manufacturing process since it results in a new commodity was under the consideration and considering Section 2(f) of Central Excise Act, it was held that the same can be said to be manufactured . However, as observed hereinabove, what is required to be considered is whether the goods imported, on which the deemed export drawback is claimed, can be said to have been manufactured in India. As observed hereinabove the goods which are imported are straightway supplied to the power project and used in the power project. No activities such as assembling etc. have been carried out and therefore, such goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit of deemed export drawback as claimed. 9.9 It is also required to be noted at this stage that in the present case the supplier is Alstom and the petitioner has imported the goods. Therefore, considering Clause/Chapter 8.4.4(i) in respect of the supplies made under Paragraphs 8.2(g) of FTP, i.e. supply of goods to power projects, the supplier shall be entitled to the benefits listed in Para 8.3(b) namely deemed export drawback. Therefore also, the petitioner not being the supplier shall not be entitled to the benefit of the deemed export drawback under Para 8.3(b) as claimed by the petitioner. 9.10 Now, so far as the submission on behalf of the petitioner that the impugned decision of the Respondent No. 3 rejecting the application/claim of the petitioner of deemed export drawback can be said to be reviewing its earlier decision and therefore, the same is hit by Section 16 of the FTDR is concerned, considering Section 16 of the FTDR, we are of the opinion that the reliance placed upon section 16 of the FTDR is absolutely misplaced. The impugned decision cannot be said to be review in exercise of powers under Section 16 of the FTDR. The impugned decision has been take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Chapter 8 of the FTP is a complete Code in itself. There are no further averments in the petition that either because of some promise and/or representation that the petitioner shall be eligible to the deemed export duty drawback and thereafter the goods were imported by the petitioner. There is no promise by the Government. The FTP applicable at the relevant time is very clear. The petitioner has not pleaded that it has acted on such promise. Therefore, on facts the decisions relied upon by the Learned Counsel appearing on behalf of the petitioner in the case of Motilal Padampat Sugar Mills Co. Ltd. (supra); Nestle India Ltd. Anr. (supra) and MRF Ltd., Kottayam (supra) shall not be applicable to the facts of the case on hand and/or shall not be of any assistance to the petitioner. Therefore, as such the impugned decisions cannot be said to be hit by principles of promissory estoppels and/or legitimate expectation as contended on behalf of the petitioner. 11. Now, so far as the challenge to the impugned minutes of meeting dated 15-3-2011 of the Policy Interpretation Committee (PIC) on the ground that what is stated in Para 3 of the minutes can be said to be change in the poli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in consonance with the FTP more particularly Chapter 8 of the FTP that on directly imported items the deemed export benefits shall not be available. The idea was to grant the benefit of deemed export benefit to the directly imported items. In that case there was no question of such a provision and straightway the exemption could have been provided under the Customs Act. The same does not seem to be the idea and/or the intent of grant of deemed export benefit under Chapter 8 of the FTP. 11.1 Respondent No. 3 being interpreting authority is bound to follow and consider the decision of the PIC which was headed by the Respondent No. 2 - DGFT. Therefore, the impugned decision of the Respondent No. 3 denying/rejecting the claim of the petitioner of deemed export benefit on the goods imported by the petitioner being Project Authority in whose name the bill of entry was issued is also just and proper, legal and as observed hereinabove in consonance with the provisions of Chapter 8 of the FTP. 12. Now, so far as the submission on behalf of the petitioner relying upon the decision of the Division Bench of this Court in the case of Alstom India Ltd. v. Union of India rendered in Specia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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