Page 138 - ELT_15th August 2020_Vol 373_Part 4

472 EXCISE LAW TIMES [ Vol. 373

Sr. Description of (Exworks) Qty. in KG Total order
No. Item Value (in Rs.)
1. POLYOL-78 4,00,000.00 3,24,00,000.00

(In words Rupees : Three Crore Twenty Four Lakhs only)
It is also certified that no other similar certificate to any other party has
been granted for the same supplies as detailed above, under the same con-
tract referred to above.’
4. The claim for refund before the 2nd respondent was dismissed on
the ground that since there was an exemption from terminal excise duty, the peti-
tioner is not entitled to the claim of refund, as sought. In appeal, this conclusion
was reiterated by the appellate authority. It is relevant to state, as a fact, that both
the original as well as appellate authorities have concurred with the petitioner
that the methodology for supply has been only through international competitive
bidding.
5. The officer, in the appellate order notes certain discrepancies in the
documentation supplied and there is also reference to documentation such as
supply invoices, certificate from Central Excise, etc. not having been produced by
the petitioner. However in conclusion, the claim is rejected only on account of
there being no enabling provision under para 8.3(c) of the Foreign Trade Policy.
6. The relevant provisions of the Foreign Trade Policy make it appar-
ent, in my view, that the benefit of deemed export is available in where the MoF
has, by Notification, permitted import at zero Customs duty, if the suppliers
were pursuant to the procedure of ICB.
7. Both the original and appellate authorities reject the claim on the
ground that the commodity in question is entitled for exemption from duty, and
thus only an exemption may be claimed and not the relief of refund.
8. I am unable to agree. There are several situation were duel reliefs are
extended to an assessee, both of an exemption as well as of refund. In a case
where both reliefs are available, the option to select the relief of its choice vests
with the assessee. This position is no longer res integra. The Supreme Court in
H.C.L. Limited v. Collector of Customs, New Delhi [2001 (130) E.L.T. 405] states as
follows :
‘The question in these appeals is covered in favour of the appellant by the
order of this Court in Collector of Central Excise, Baroda v. Indian Petro Chemi-
cals [1997 (92) E.L.T. 13]. Where there are two exemption notifications that
cover the goods in question, the assessee is entitled to the benefit of that ex-
emption notification which gives him greater relief, regardless of the fact
that that notification is general in its terms and the other notification is
more specific to the goods.
2. The civil appeals are allowed and the orders under appeal are set aside.
3. No order as to costs.’
9. Revenue also argues that that the writ petition is not maintainable in
the light of the fact that the impugned order is subject to a revision in terms of
Regulation 16 of the Foreign Trade (Development and Regulation Act), 1992.
However, since the issue arising for consideration is squarely covered by the
judgment of the Supreme Court (supra) followed consistently by this Court (see
Lenovo (India) Pvt. Ltd. v. Union of India [2017 (346) E.L.T. 12 (Mad.)], M/s. Agnice

EXCISE LAW TIMES  15th August 2020  138