Page 239 - ELT_15th July 2020_Vol 373_Part 2

2020 ] HINDUSTAN TIN WORKS LTD. v. UNION OF INDIA 221

different types of cases. TED refund is allowed where TED exemption is not
available.
5. The DGFT argued that by virtue of Circular No. 16 of 15-3-2013 the
provisions of FTP have been in existence. To clarify, it is stated that the policy
circular did not introduce any amendment or new provision. The DGFT states
that Chapter 6 of the FTP contains provisions to set up EOUs, import and export
by them as well as allied governing the provisions. Para 6.2(b) of FTP 2009-14
clearly provides that the goods procured by an EOU from Domestic Tariff Area
(DTA) shall be exempted from payment of duty. It is further strengthened by
para 6.11(c) (ii), which stipulates that the goods procured by an EOU from the
DTA would be exempted from payment of Central Excise Duty. It is therefore
reiterated that the petitioner could have taken the benefit under the FTP subject
to the conditions provided in the FTP/Handbook of Procedure (HBP). If HBP
provides for exemption from payment of TED, the concerned unit cannot there-
fore, on its own decide the duty claimed for refund.
6. As is evident from the above discussion, the refund of TED claim in
this case pertains to export and transaction prior to 15-3-2013. The crucial clarifi-
catory circular was issued on that day. Two applications made in respect of sales
to the EOUs (Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.) covered var-
ious periods prior to 15-3-2013. This aspect is of significance and appears to have
completely lost sight off. The DGFT - as well as Central Excise Authorities have
not principally denied that the supplies were made to EOUs (Vimal Agro Prod-
ucts Pvt. Ltd. and TATA Coffee Ltd.). In these circumstances, the question is
what constitutes the entitlement of such unit that supplied the goods to Export
Oriented Units. This can be gained from the extracts of FTP, which are repro-
duced below :
“8.2 Categories of Supply. - Following categories of supply of goods by
man sub-contractors shall be regarded as “Deemed Exports” under FTP,
provided goods are manufactured in India :
(a) Supply of goods against Advance Authorisation/Advance
Authorisation for annual requirement DFIA;
(b) Supply of goods to EOU/STP/EHTP/BTP;
(c) Supply of capital goods to EPCG Authorisation holders;
(d) Supply of goods to projects financed by multilateral or bilat-
eral Agencies/Funds as notified by Department of Economic
Affairs (DEA), MoF under International Competitive Bidding
(ICB) in accordance with procedures of those Agen-
cies/Funds, where legal agreement provide for tender evalua-
tion without including customs duty;
(e) Supply of capital goods, including in unassem-
bled/disassembled condition as well as plants, machinery, ac-
cessories, tools, dies and such goods which are used for instal-
lation purposes till stage of commercial production, and
spares to extent of 10% of FOR value to fertilizer plants;
(f) Supply of goods to any project or purpose in respect of which
the MoF, by a notification, permits import of such goods at ze-
ro customs duty;
(g) Supply of goods to power projects and refineries not covered
in (f) above;
EXCISE LAW TIMES  15th July 2020  239