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TMI Blog2023 (2) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ing relevant year, was a 100% duly registered Export Oriented Unit (EOU) and was engaged inter alia in the manufacture of control panel switch-gear and completely knocked down parts of control panels which were exported out of India. 3. The Petitioner, during its regular business, procured inputs required to manufacture final products from the supplier in the Domestic Tariff Area (DTA). At the relevant time, the DTA units were supplying goods on payment of CENVAT (Excise duty) to Petitioner, and the Petitioner used the goods in the manufacture of the final products cleared for export. The Petitioner did not claim or avail CENVAT credit or duty paid by the DTA units under the provisions of the CENVAT Credit Rules, 2004. The DTA units also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltimate exporter." 6. By a circular dated 15 March 2013, the Director General of Foreign Trade ("DGFT") has clarified that no refund of TED should be provided to supplies that are ab-initio exempted from payment of excise duty. The said circular is also quoted as under :- "Government of India Ministry of Commerce and Industry Directorate General of Foreign Trade Udyog Bhawan, New Delhi Policy Circular No.16(RE-2012/2009-14) Dated: 15th March, 2013 To, All Regional Authorities All Development Commissioners, SEZ Subject : Clarification regarding TED Refund where TED exemption is available. It has come to the notice of this Directorate that some RAs of DGFT and the Officers of Development Commissioners of SEZ are providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing categories of supplies: (i) Supplies against ICB; (ii) Supplies of intermediate goods, against invalidation letter, made by an Advance Authorisation holder to another Advance Authorisation holder; and (iii) Supplies of goods by DTA unit to EOU/EHTP/ STP/BTP unit Thus such categories of supply which are exempt ab initio will not be eligible to receive refund of TED." (emphasis supplied) Therefore, such categories of supply, including supplies of goods by DTA unit to EOU, which were exempted ab-initio were eligible to receive refund of TED. 7. The object of FTP was to encourage DTA suppliers by providing a refund of TED in terms of para 8.3(c), subject to fulfillment of formalities and stipulations in Chapter 8 of FTP. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore, vide letter dated 24 July 2019, Petitioner submitted the original documents to Respondent No.3 after which a meeting was scheduled on 18 November 2019. 11. Respondent No.4, by its letter dated 28 November 2019, returned the original documents to the Petitioner. Instead of granting the TED refund, which has led to filing of this petition. 12. Mr.Prakash Shah, learned counsel for the Petitioner, would submitted that during the pendency of this petition, the Hon'ble Supreme Court in the case of Sandoz Private Limited Vs. Union of India 2022 (379) E.L.T.279 (S.C.) has considered Chapter 8 of the FTP, including paragraph 8, as well as the policy circular dated 15 March 2013 and has held that EOU entities who had procured and imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund under the 1944 Act or 2002 Rule or 2004 Rules as such, but under the applicable FTP. 42. In conclusion, we hold that the EOU entities, who had procured and imported specified goods from DTA supplier, are entitled to do so without payment of duty (as in para 6.2(b)) having been ab initio exempted from such liability under para 6.11(c)(ii) of the FTP, being deemed exports. Besides this, there is no other entitlement of EOU under the applicable FTP. Indeed, under para 6.11 (a) of the FTP, EOU is additionally eligible merely to avail of entitlements of DTA supplier as specified in Chapter 8 of the FTP under production of a suitable disclaimer from the DTA supplier and subject to compliance of necessary formalities and stipulations. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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