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TMI Blog2020 (1) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ,28,199/- to the petitioner on the terms and conditions that may be deemed fit by this Hon'ble Court. (C) An ex-parte ad-interim relief in terms of para 22(B) above may kindly be granted. (D) Any other further relief as may be deemed fit in the facts and circumstances of the case may also please be granted." 2. The short facts, giving rise to this writ application, are that the writ applicants were running 100% Export Oriented undertaking for manufacture of various dyes by virtue of the license/permission issued in its favour by the office of the Development Commissioner, Kandla Special Economic Zone by letter of permission dated 3rd July, 2003. 3. It is the case of the writ applicants that by letter of permission issued in their favour, the manufacturing operations in the Export Oriented Union were being conducted in accordance with the Foreign Trade Act and Foreign Trade Policy constituted thereunder. The Unit of the writ applicants was allowed to procure duty free raw materials, consumables, capital goods etc. for using the same in relation to manufacture of goods for export and, accordingly, the writ applicants had been availing benefit of such duty free procureme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the action taken by the Development Commissioner, in seeking to recover the amount of CST reimbursement already allowed in favour of the various EOUs have come up before this Court in the Special Civil Application No.16301 2016 and this Court by judgment rendered in the case of M/s. Asahi Songwan Colors Ltd., reported in 2017 (356) ELT 532 (Guj.) has held that the CST reimbursement was permissible to EOUs even when the goods and materials were purchased from other EOUs located in the country and that the circular issued by the Government clarifying a contrary position, was set aside. 11. The writ applicants, thereafter, applied for exit from the EOU scheme in the year 2017. However, the respondents herein had raised an issue of CST reimbursement coupled with several other issues relating to CST in respect of the goods and the materials purchased from the other EOUs. The writ applicants, therefore, applied for 'No Objection Certificate' for exiting from the EOU scheme from the Central Excise Authorities and also from the KASEZ Authorities. The Central Excise Authority issued such certificate on 26th September, 2017. However, the KASEZ Authorities declined to issue suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (i) of clause (c) of para 6.11 did not make any such reference to the procurement from a DTA unit but used the expression "goods manufactured in India", it must be understood that this clause would govern the goods purchased by EOU unit from any unit as long as the condition of goods being manufactured in India is satisfied. In plain terms, therefore, the Foreign Trade Policy, 2004-2009 did not limit the benefit of CST reimbursement to a EOU on purchases made only from a DTA unit. 19. If this be the conclusion, the immediate question that would arise is, could the authorities have restricted the benefit only in case of procurement from a DTA unit through the procedure laid down for implementation of Foreign Trade Policy? We have noticed that the Director General of Foreign Trade in terms of Section 6 of the Act has certain delegated powers which would include powers to frame such procedures. Sub-section (3) of Section 6 however, excludes the delegation of such powers to those contained under Sections 3, 5, 15, 16 and 19 of the Act. In exercise of powers under Section 6, the Director General of Foreign Trade could not have framed or altered the Foreign Trade Policy. We may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in violation of Article 246 of the Constitution of India. If we accept the contention of Mr. Raval that the Respondent No. 2 is authorized to incorporate the duty drawback Rules by reference, it would amount to acceptance of the proposition that the Respondent No. 2 is authorized to deal with under the FTDR Act, the similar matters relating to duty and tax refunds as provided under Section 75 of the Customs Act, Section 37 of the Central Excise Act and Section 93A read with Section 94 of the Finance Act, 1994 although not authorized under the FTDR Act. We are in agreement with Mr. Ghosh, the learned advocate for the petitioner, that the conferment of such power to the Respondent No. 2 to adopt the duty drawback rules without any power to legislate either expressly or otherwise would amount to permitting the levy or collection of tax without authority of law in violation of Article 265 of the Constitution of India." 20. Our attention was also drawn to the decision of learned Single Judge of Madras High Court in case of Hospira Health Care India Pvt. Ltd. v. Development Commissioner, MEPZ Special Economic Zone & Heous and Ors. reported in (2016) 4 MLJ 179, in which similar issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy is concerned for grant of such CST reimbursement, no change has been brought about in the Foreign Trade Policy, 2015-2020 as compared to the Foreign Trade Policy, 2004-2009. Despite this, base policy being the same, the procedure for claiming reimbursement of CST on supplies made to EOU under the current policy now envisages such reimbursement on any sales made to a EOU not only from DTA but also from EOU, SEZ, etc. 23. Once again the contention of the Union of India was that the policy itself does not envisage grant of such reimbursement on procurement from an EOU, the question would immediately arise is whether such benefits could have been recognized through a procedure framed for claiming such a benefit? This further development would effectively prevent the respondents from contending that the original Foreign Trade Policy, 2004-2009 did not envisage CST reimbursement by an EOU upon procurement of goods manufactured in another EOU. 24. There is yet another angle why we would not permit the respondents to make recoveries. As noted, the claim pertained to period between 2006 and 2008. They were made at the relevant time and granted by the respondents without any dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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