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352 EXCISE LAW TIMES [ Vol. 372

manding duty on the goods cleared under proper invoice and on which, duty is
physically paid and is accepted by the department as duty. He has submitted
that the DGFT has also accepted the fact that as the duty is physically paid, it has
refunded such payment by way of Terminal Excise Duty Refund.
8.3 Mr. Joshi, Learned Senior Counsel has submitted that the alleged
demand of Rs. 90,59,957/- under the provisions of Section 11A(4) of Central Ex-
cise Act is challenged on the ground that the same is without jurisdiction inas-
much as said amount is nothing but refund sanctioned by DGFT and the Cus-
toms department has no jurisdiction to recover such amount. He has submitted
that the demand of Rs. 1,26,99,092/- which is confirmed under Section 28(4) of
the Customs Act, 1962 is challenged on the ground that the exemption availed is
against valid advance authorization which are still not challenged or cancelled
by DGFT.
8.4 Regarding TED, Mr. Joshi, Learned Senior Counsel has submitted
that so far as the recovery of TED is concerned, the clearances are with payment
of Central Excise Duty and, therefore, the allegation of clandestine clearance
cannot be sustained and as admitted by the department, the refund is not sanc-
tioned by the Central Excise Department. According to him, since the refund of
TED is sanctioned by DGFT and since controlled under the different provisions,
the refund sanctioned under the said provisions cannot be recovered by the Cus-
tom Department.
8.5 Mr. Mihir Joshi, Learned Senior Counsel has also submitted that the
custom duty is not recoverable on the grounds that the licenses issued are still
valid and in terms of the decisions cited by him, no demand can be raised. While
referring to the decisions in the case of C.C. (Export Promotion), Mumbai v. Koatex
Infrastructure Ltd., 2015 (323) E.L.T. 169 (Tri. - Mumbai), Mr. Joshi, Learned Senior
Counsel has also submitted that when EODC is still valid and is not cancelled,
the benefit of exemption notification is available.
8.6 Mr. Mihir Joshi, Learned Senior Counsel has relied upon the follow-
ing decisions and while submitting written submission, has submitted that the
Custom Authority has no jurisdiction for issuing any notice or adjudicate as re-
fund was given by the DGFT and advance authorization licence is still in exist-
ence and he has prayed to allow the present petitions.
(i) Collector of Customs, Bombay v. Sneha Sales Corporation, 2000 (121)
E.L.T. 577 (S.C.);
(ii) Titan Medical Systems Pvt. Ltd. v. Collector of Customs, New Delhi, 2003
(151) E.L.T. 254 (S.C.);
(iii) Joint Director General of Foreign Trade v. IFGL Refractories Ltd., 2002
(143) E.L.T. 294 (Cal.)
(iv) Commissioner of Customs v. Rajnarayan Jwalaprasad, 2014 (306) E.L.T.
592 (Guj.);
(v) C.C. (Export Promotion), Mumbai v. Koatex Infrastructure Ltd., 2015
(323) E.L.T. 169 (Tri. - Mumbai);
(vi) Simplex Infrastructure Ltd. v. Union of India, 2016 (342) E.L.T. 59
(Del.);
9. Ms. Shruti Pathak, Learned Counsel for respondent No. 2 has vehe-
mently submitted that primary objection is regarding maintainability of the peti-
tions as the petitioners have challenged the order passed by the Custom Authori-
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