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2020 ] MULTITEX FILTRATION ENGINEERS LIMITED v. UNION OF INDIA 75

fund of TED is an erroneous assumption. Petitioner has demonstrated that there
can be several supplies which may qualify to be supplies under ICB, yet not be
eligible for excise duty exemption on account of the fact that they are not eligible
for customs duty exemption. Even though the supplies made by the petitioner
fall under ICB, it does not ipso facto mean that they are not supplies under the
excise notification. Ergo, since the supplies do not qualify as ab initio exempted
supplies, the impugned circular dated 15th March, 2013 could not be invoked by
the Respondents so as to deny the refunds. The rejection has no legal or sound
reasoning and is not in consonance with the FTP, and is liable to be set aside.
14. Now coming to the supplies made to Oil India Fimited, mentioned
at serial No. (iii) in paragraph 3 of this order, we feel that the petitioner should
also be given similar relief in respect of the supplies thereof, since it has elected
to pay the excise duty and not claim exemption. Petitioner has explained that in
its past experience, excise duty exemption was often denied and thus it went on
to pay the excise duty instead of claiming refund. In this context, it is essential to
note that paragraph 8.3(c) of FTP 2009-14 was amended vide notification No. 4,
dated 18th April, 2013. For the sake of convenience, the amended para 8.3(c) of
the FTP 2009-14 is extracted hereinafter :
“Refund of terminal excise duty will be given if exemption is not available.
Exemption from TED is available to the following 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 eligi-
ble to receive refund of TED.”
Contrasting this with the erstwhile provision, it can be noticed that by virtue of
the notification No. 4, dated 18th April, 2013, a condition was incorporated stipu-
lating that categories of supplies which are exempt ab initio would not be eligible
to receive refund of TED. In the present case, the supplies were made during the
period from 15th December, 2009 to 10th February, 2011 and thus during the rel-
evant period, there was no such condition in the FTP. It may also be noted that
the aforenoted notification is substantive and not clarificatory and therefore can-
not be applied retrospectively. Thus, even in this situation, in our view, the peti-
tioner is entitled to refund of TED under para 8.3 (c) of the FTP as the exemption
was not availed by the petitioner and it opted to pay the excise duty.
15. We may further note that the respondents have also issued a policy
circular No. 11/2015-20, dated 23rd July, 2018, which reads as under :
“New Delhi, dated : 22-7-2018
Policy Circular No. 11/2015-20
To
All Regional Authorities
All Development Commissioners, SEZ
All Export Promotion Councils/Commodity Bodies

EXCISE LAW TIMES  1st July 2020  165