Page 236 - ELT_15th July 2020_Vol 373_Part 2

218 EXCISE LAW TIMES [ Vol. 373

REPRESENTED BY : Shri R.K. Krishnan, Advocate, for the Petitioner.
S/Shri Harpreet Singh, Sr. Standing Counsel with
Roshan Lal Goel, Ms. Anju Gupta and
Ms. Suhani Mathur, Advocates, for the Respondent.
[Order per : S. Ravindra Bhat, J. (Oral)]. - The petitioner seeks a direc-
tion to consider its application for refund of Terminal Excise Duty (in the sum of
` 46,54,295/-) vis-à-vis deemed exports made to Vimal Agro Products Pvt. Ltd.
and TATA Coffee Ltd.
2. The petitioner manufactures tin containers, which had been supplied
to various Export Oriented Units (EOUs). Those EOUs in turn exported the final
product using tin containers as packaging material. Such supplies made were
being treated as deemed export under the provisions of Foreign Trade Policy,
2009-14 framed under the Foreign Trade (Development and Regulation) Act. It is
alleged that Terminal Excise Duty (TED refund claims) were entertained by the
Director General of Foreign Trade and refund sanctioned as the containers were
ultimately used for export. While doing so, Circular No. 16 was issued on 15-3-
2013, stating that in the case of supply of goods inter alia to 100% EOUs no refund
of Terminal Excise Duty (TED) will be provided by the DGFT authorities. This
was on the premise that the supplies were exempted from payment of excise du-
ty and that if there was any error or oversight in the collection of tax, the con-
cerned agency would refund it rather seeking reimbursement from DGFT. This
was subsequently followed by another notification dated 18-4-2013 which sought
substitution of para 8.3(c) of the Foreign Trade Policy and provided that refund
of TED would be given if exemption is not available; since exemption from CVD
was available for supplies. The petitioner contended that an application was filed
for refund of TED paid to the office of the Joint DGFT in respect of supply of tin
containers to Vimal Agro Products Pvt. Ltd. against payment of Terminal Excise
Duty (TED) during January 2012 to March 2013 i.e. prior to the issue of Circular
No. 16, dated 15-3-2013. This application was returned. Subsequently, another
refund application (covering the period April, 2012 to January, 2013) made in
respect of TATA Coffee Ltd. too was not taken into consideration. The petitioner
then applied refund claim with Central Excise Department for the same on 11-3-
2014. The Dy. Commissioner of Excise thereafter issued a Show Cause Notice on
1-10-2014 proposing to disallow the refund claim, which was contested. The re-
fund claim was rejected by the excise authority by order-in-original, dated 29-5-
2015. Aggrieved, the petitioner approached the Dy. Commissioner in appeal,
which was rejected on 16-11-2016. The petitioner unsuccessfully approached the
CESTAT, which in its Chandigarh Bench, rejected the appeal.
3. It is contended by Mr. R. Krishnan, Advocate on behalf of the peti-
tioner that the claim made by the excise authorities was by way of an alternative
as the DGFT primarily was responsible for the refund of TED paid. On the con-
tention of DGFT, excise officials were approached for refund. He relied upon the
judgment of this Court in Kandoi Metal Powders Mfg. Co. Pvt. Ltd. v. Union of
India, (2014) 302 E.L.T. 209 (Del.), where after noticing the various provisions of
the Foreign Trade Policy, 2009-14 framed under the Foreign Trade Development
and Regulations Act, 1992, the Court held, as follows :
7. The eligibility for refund is provided by para 8.5 in the following
terms :
“8.5 Eligibility for refund of terminal excise duty/drawback
EXCISE LAW TIMES  15th July 2020  236