Page 238 - ELT_15th July 2020_Vol 373_Part 2

220 EXCISE LAW TIMES [ Vol. 373

supply of goods falls within the category of deemed export, the unit would
be entitled to refund of TED.
10. In view of the above discussion, the impugned orders are hereby
quashed. The respondents are hereby directed to process and pass appro-
priate orders in accordance with the 2009 policy in respect of the petition-
er’s refund claims made through its applications dated 29-8-2012 and 16-11-
2012 within three months from today. The writ petition is allowed in the
above terms. No costs”.
4. The respondents, especially the DGFT in its counter-affidavit insists
that the refund claims were correctly not entertained and that appropriate agen-
cy that could have been possibly approached was Central Excise Authorities. The
stand of the DGFT, may be gathered from its preliminary submissions in the
counter affidavit filed, which are as under :
“10. The Respondents have issued the Policy Circular No. 16, dated 15-3-
2013, with the approval of the Director General of Foreign Trade (DGFT)
which clarifies the provisions of the FTP which have already been in exist-
ence. The circular has not introduced any amendment or new provisions or
new conditions in the FTP. Any amendment made in the FTP, 2009-14, is
duly done only through a Notification issued by the Government of India
and not through a policy circular. The Chapter 6 of FTP, 2009-14 contains
the provisions for setting up of Export Oriented Units (EOUs), import &
[export] by them and allied governing provisions. Para 6.2(b) of FTP, 2009-
14 clearly provides that an EOU may import/procure from Domestic Tariff
Area (DTA), all types of goods, without payment of duty. The said provi-
sion has been further strengthened by Para 6.11(C)(ii), which provides that
the goods procured by an EOU from the DTA would be exempted from
payment of Central Excuse Duty. Applicant can take benefit under FTP
subject to the conditions given in FTP/HBP. If FTP provides for exemption
from payment of TED, it cannot, on its decide to pay duty and claim re-
fund.
11. That para 8.3(c) of FTP 2009-14, provides for benefit of the Terminal
Excise Duty (TED). This covers both - TED refund as well as TED exemp-
tion, as applicable for different types of cases. TED refund is allowed where
TED exemption is not available. The Respondent submit that these provi-
sions have been clarified vide Policy Circular No. 16, dated 15-3-2013 issued
by DGFT. The Respondents also submit that this policy circular has not in-
troduced any new conditions provisions, it has merely clarified the provi-
sions of Para 8.3(c) of FTP-2009-14, which has already been in existence.
12. That none of the provisions laid down in the Handbook of the Proce-
dure or the Foreign Trade Policy permits an exporter to make a choice on
the method of seeking benefit regarding the TED. It is nowhere mentioned
that the exporter may first opt for the payment of TED and thereafter he
may seek refund of the same. TED exemption or refund is to be taken as
provided for in FTP 2009-14, by reading various provisions of FTP 2009-14,
in a harmonious manner.
13. It is also admitted that Para 8.3(c) extends the benefits under deemed
exports for the supplies which qualify as deemed exports. The qualified
Deemed Exports are undoubtedly eligible for the corresponding benefits, as
applicable under Para 8.3(c), one of the benefits is the TED. Para 8.3(c) of
FTP 2009-14, covers both TED refund as well as exemption from TED for

EXCISE LAW TIMES  15th July 2020  238