Page 161 - ELT_1st July 2020_Vol 373_Part 1

2020 ] MULTITEX FILTRATION ENGINEERS LIMITED v. UNION OF INDIA 71

outcome. Aggrieved with the rejection of the claims, Petitioner has now ap-
proached this Court by way of the instant petition.
7. Ms. Mannat Waraich, Learned Counsel for the petitioner has placed
strong reliance on the judgment of this Court in M/s. Alstom Transport India Lim-
ited (supra) to contend that the issue raised in the present petition is squarely
covered and the respondents therefore have no lawful justification to refuse the
refund. It is further argued that the respondents’ understanding of the Circular
dated 15th March, 2013 is flawed upon an erroneous assumption of facts and
law. Respondents have wrongly presumed that all supplies under ICB are ab ini-
tio exempted. In fact there are several supplies which are not exempted from the
payment of excise duty since they are not exempted from levy of Customs duty.
Resultantly, such supplies do not qualify for ab initio exemption and thus the re-
jection of refund claims based on an erroneous understanding of law is complete-
ly misconceived and untenable in law. Alternatively, it is argued that the peti-
tioner may be entitled to ab initio exemption, but since it has chosen to pay excise
duty, it is entitled to refund under paragraph 8.3(c) of the FTP.
8. Per contra Ms. Shiva Lakshmi, Learned CGSC argued that notwith-
standing the decision of this Court in M/s. Alstom Transport India Limited (supra),
the petitioner is not entitled to the benefit sought in the present petition. She
submitted that the aforesaid judgment is relevant only in respect of such cases
which are covered under paragraph 8.3(c) of the FTP. The case of the petitioner
falls under 8.2(g) of the FTP and hence it cannot seek a similar relief as has been
granted in M/s. Alstom Transport India Limited (supra).
9. We have given our thoughtful consideration to the submissions ad-
vanced by Learned Counsel for the parties. The controversy in the present case
surrounds the conditions of the FTP and it would thus be apposite to extract rel-
evant paragraphs of the relevant FTP 2009-14 applicable to the period during
which the supplies were made by the petitioner. Paragraph 8.2 of the FTP as it
existed at the relevant time reads as under :
“8.2 Following categories of supply of goods by main/sub-contractors
shall be regarded as “Deemed Exports” under FTP, provided goods are
manufactured in India :
(a) Supply of goods against Advance Authorisation/Advance
Authorisation for annual requirement/DFIA;
(b) Supply of goods to EOU/STP/EHTP/BTP;
(c) Supply of capital goods to EPCG Authorisation holders;
(d) Supply of goods to projects financed by multilateral or bilat-
eral Agencies/Funds as notified by Department of Economic
Affairs (DEA), MoF under International Competitive Bidding
(JCB) in accordance with procedures of those Agencies I
Funds, where legal agreements provide for tender evaluation
without including customs duty; Supply and installation of
goods and equipment single responsibility of turnkey con-
tracts to projects financed by multilateral or bilateral Agen-
cies/Funds as notified by DEA, MoF under ICB, in accordance
with procedures of those Agencies/Funds, which bids may
have been invited and evaluated on the basis of Delivered Du-
ty Paid (DDP) prices for goods manufactured abroad;
(e) Supply of capital goods, including in unassembled/
disassembled condition as well as plants, machinery, accesso-

EXCISE LAW TIMES  1st July 2020  161