Page 167 - ELT_1st July 2020_Vol 373_Part 1

2020 ] MULTITEX FILTRATION ENGINEERS LIMITED v. UNION OF INDIA 77

5. The issue of refund/exemption of TED for supplies to the Projects funded by
JIGA etc. (other than IBRD, IDA and ADB) under para 8.2(d) of FTP 2009-14 has
been considered in this Directorate in consultation with Department of Revenue
and Department of Economic Affairs. To honour the commitment made in the
erstwhile FTP 2009-14, it has been decided, in relaxation of the provisions of para
8.3(c), to allow the refund of Terminal Excise Duty, where exemption from pay-
ment of TED under relevant excise notifications was not available, in respect of
supplies made to the projects funded by JICA etc. (other than IBRD, IDA and
ADB) notified vide DGFT’s Public Notice No. 67 on 25th May, 2010 for supplies
made upto 31-3-2015.
6. All the Regional Authorities are advised to dispose the claims of appli-
cants for the supplies made up to 31-3-2015 under para 8.2(d) of FTP 2009-
14 by way of refund of Terminal Excise Duty (TED) for the. projects funded
by JICA etc. (other than IBRD, IDA and ADB) provided those supplies are
otherwise eligible under FTP, 2009-14.
7. This issues with approval of Competent Authority.
(Shobhit Gupta)
Deputy Director General of Foreign Trade
Tel. No. 23061562 Ext 341
shobhit.gupta@gov.in
[Issued from File No. 01/92/180/16/AM-15/PC-VI]”
(emphasis supplied)
16. In terms of the above circular, it appears that DGFT has now identi-
fied the issue viz-a-viz the non-refund of excise duty paid by the suppliers. This
circular in our view now recognizes the provisions of the FTP in the right per-
spective, that exemption from TED was not available for certain supplies even
though the same were under ICB. There is thus no impediment in granting the
refund to the Petitioner. In view of the above discussion, we hold that the im-
pugned circular has no application to the case of the petitioner and it is lawfully
entitled to refund of TED in terms of para 8.3 (c) read with para 8.4.4. (iv) of the
FTP.
17. Before parting, we may also note that in M/s. Alstom Transport India
Limited (supra), this Court relying upon the decision of the Supreme Court in DG
of Foreign Trade v. Kanak Exports, (2016) 2 SCC 226 = 2015 (326) E.L.T. 26 (S.C.)
considered a similar fact situation and concluded that certain ICB supplies made
were dutiable and accordingly entitled to TED refund. The relevant portion of
the said judgment reads as under :
“19. It is quite clear therefore, that both the central excise and customs ex-
emption notifications would spell out that no customs duty exemption to
goods supplied to the Chennai Metro Rail Project was given to the petition-
er; it cannot be said that such exemption was ever enjoyed by it. Therefore,
the respondents’ argument that excise duty was exempt “ab initio” in re-
spect of supplies made under the contracts funded by JICA, to the Chennai
Metro, are factually incorrect. The exemption was not “ab initio” (i.e. per se)
exempt; it was conditional upon availability of customs duty exemption, by
virtue of Note 41 to the Excise Duty exemption notification. However, the
customs duty exemption notification restricted duty exemption only to
supplies made to specified contracts relating to the Delhi Metro Rail

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