Page 237 - ELT_15th July 2020_Vol 373_Part 2

2020 ] HINDUSTAN TIN WORKS LTD. v. UNION OF INDIA 219

Supply of goods will be eligible for refund of terminal excise duty
in terms of Para 8.3(c) of FTP, provided recipient of goods does not
avail CENVAT credit/rebate on such goods. A declaration to this
effect, in Annexure-II of ANF-8, from recipient of goods, shall be
submitted by applicant. Similarly, supplies will be eligible for
deemed export drawback in terms of para 8.3(b) of FTP of Central
Excise Duty paid on inputs/components, provided CENVAT cred-
it/rebate has not been availed of such duty paid by supplier of
goods. A declaration to this effect, in Annexure-III of ANF-8, from
supplier of goods, shall be submitted by applicant. Such supplies
shall however be eligible for deemed export drawback on customs
duty paid on inputs/components.
xxxxxx xxxxxx xxxxxx”
8. It would thus be seen that supplies made to EOUs in terms of para
8.2(b) are entitled to be regarded as deemed exports. The benefits for
deemed exports include inter alia exemption from TED where supplies are
made against ICD (a term which means “International Competitive Bid-
ding”). In the present case, concededly, the petitioner did not make any
supplies against the ICD. Therefore, it would be covered by latter part of
para 8.3(c), i.e. cases where refund of TED will be given. This intention is
given effect by the second entry in column (a) of para 8.4 read with corre-
sponding benefits spelt-out in column (c) which states that entitlement in
terms of para 8.3 to refund is permissible. The eligibility for refund, there-
fore, would be in terms of these provisions and the unit has to apply for
such refund under para 8.5.
9. The authorities in this case appear to have proceeded to make an order
adverse to the petitioner and proceeded to hold that the petitioner was dis-
entitled to the benefit of refund in view of some clarification given by the
Policy Interpretation Committee, in its meeting of 4-12-2012 to the effect
that “refund of CENVAT credit provisions are available under Excise rules
and CENVAT rules which should be availed of rather than claiming re-
fund”. This reasoning appears to have prevailed with the Policy Relaxation
Committee as well in this case. This Court is unable to comprehend the ra-
tionale of the decision of the second and third respondents who also seem
to have suggested that the petitioner should approach the DGFT for appro-
priate relief or clarification. Neither of the authorities dispute that the peti-
tioner supplied goods to the EOU at the relevant time. Its entitlement,
therefore, was defined in terms of the existing policy, i.e. refund in terms of
paras 8.2, 8.3, 8.4 and 8.5 of the 2009 policy as discussed above. That a sub-
sequent amendment was made to the existing regime which in effect liber-
alized the position further and exempted payment of TED altogether can-
not surely be a reason for denying the scheme for refund of payment al-
ready made. The Court also is unable to see the reason why the respond-
ents were of the view that refund claim or benefit under the CENVAT re-
gime under the Central Excise Act or the other statutory schemes framed
under it is available. In this Court’s opinion, that regime operates in its own
terms and is independent of the rights and liabilities of the petitioner and
the respondents under the import-export policies framed under the 1992
Act. This Court notices that its reasoning is fortified by the decision of the
Division Bench of the Calcutta High Court in JDGFT v. IFGL Refractories
Limited, 2002 (143) E.L.T. 294 (Cal.). There, the Court ruled that once the

EXCISE LAW TIMES  15th July 2020  237