Page 160 - ELT_1st July 2020_Vol 373_Part 1

70 EXCISE LAW TIMES [ Vol. 373

(i) Application No. MFE/CTC-168VIJ, dated 28-2-2014 for supplies
made to BHEF Noida for setting up of Thermal Power Project
(3x250 MW).
(ii) Application No. MFE/CTC-160/NIJ-132, dated 28-2-2014 for sup-
plies made to Lanco Infratech Gurgaon for setting up of a Thermal
Power Project (2x507 .5 MW).
(iii) Application No. MFE/WE-802VU, dated 28-2-2014 for supplies
made to OIL, India Fimited for Petroleum Mining Fease.
(iv) Application No. MFE/CTC-166VIJ, dated 28-2-2014 for supplies
made to BHEL Noida for setting up of Thermal Power Project (1500
MW).
(v) Application No. MFE/SKID-132VIJ, dated 28-2-2014 for supplies
made to BHEL Hyderabad for setting up of Thermal Power Project
(1500 MW).
4. As per the Project Authority Certificate (hereinafter ‘PAC’) in respect
of some of the applications enumerated at serial Nos. (i), (ii), (iv) and (v) above,
the petitioner was required to make supplies under para 8.2(g) of the FTP. In re-
spect of such supplies, Ministry of Finance had not notified any Customs duty
exemption and as such the PAC indicated that in respect of such supplies, ap-
propriate duty of Customs/Excise would apply. Accordingly, as per the afore-
noted PAC received from the project owner, the petitioner filed the refund appli-
cations seeking refund of TED in terms of para 8.3(c) read with 8.4.4(iv) of FTP.
With respect to application enumerated at serial No. (iii) above, the project own-
er issued a PAC indicating that the goods are exempted from Customs duty by
virtue of Ministry of Finance notification issued in this respect and that deemed
export benefit as contemplated under para 8.2(f) would be available. Petitioner
submits that since it was a regular practice of the Excise Department to deny the
excise duty exemption on the sole basis that the pre-conditions of furnishing an
essential certificate, as is necessary for availing customs duty exemption on im-
ported goods was never furnished, petitioner instead paid the duty and thereaf-
ter claimed refund in respect of such duties as per the terms of the scheme.
5. Respondent No. 3 rejected the refund applications vide letter dated
31st March, 2014 placing reliance upon Circular No. 16, dated 15th March, 2013
and contending that as supplies against ICB are ab initio exempted from payment
of excise duty, the same are ineligible for refund.
6. Aggrieved by the aforesaid rejection, petitioner vide letter dated 26th
August, 2014 approached DGFT - Respondent No. 2. No action was taken on this
representation. Thereafter, petitioner engaged in multiple correspondences with
various officials of the respondents, repeatedly requesting for refund of TED.
Such requests were not acted upon or responded to. Eventually, Deputy Director
General of Foreign Trade (Respondent No. 4) vide a letter dated 31st March, 2015
denied the refund of TED on the ground that the supplies made by petitioner for
the power projects are under ICB and therefore in terms of para 8.3(c) of the FTP,
as clarified by Policy Circular No. 16, dated 15th March 2013, the supplies were
ab initio exempted from the payment of excise duty and were not eligible for re-
fund. This was followed with numerous correspondence exchanged with the
respondents which met the same fate of denial. Petitioner also brought the deci-
sion of this Court in M/s. Alstom Transport India Limited (supra) to the notice of
Deputy Director General of Foreign Trade. Nevertheless, there was no favorable
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