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2015 Supreme(Del) 193
High Court of Delhi
RAJIV SHAKDHER, J.
Alstom India Ltd. - Appellant
Versus
Union of India & Others - Respondent
W.P.(C). No. 1331 of 2015
Decided on: 11-02-2015
For the Petitioner:Sujit Ghosh, Kanupriya Bhargava, Krishna Rao, Advocates.
For the Respondents:R1 to R3, Sanjeev Narula, Manisha Gupta, Ajay Kalra, Advocates.
The necessity of formal communication of decisions before they can be challenged and the requirement for timely examination and decision on refund claims by the concerned authority
Headnote:
Deemed Exports - Refund of Terminal Excise Duty - Paragraph 8.3(c) of the Foreign Trade Policy - Circular dated 15.3.2013 - Judgments of the Delhi High Court and Gujarat High Court - Administrative interpretation of the FTP
Fact of the Case:
The petitioner supplied boiler components to NTPC under International Competitive Bidding and paid Terminal Excise Duty (TED). The petitioner sought refund of TED under the Foreign Trade Policy (FTP) but faced rejection based on file notings and a circular dated 15.3.2013.
Finding of the Court:
The court declined to set aside the file notings as they were not formally communicated to the petitioner. It also held that the petitioner's claim for refund cannot be considered until a formal decision is communicated by respondent No.3. The court directed respondent No.3 to examine the case and pass a suitable order within two weeks.
Issues: Challenge to file notings and circular dated 15.3.2013, prayer for setting aside the file notings, seeking a direction for refund, and applicability of the circular
Ratio Decidendi: The court emphasized the necessity of formal communication of decisions before they can be challenged. It also highlighted the need for respondent No.3 to pass a suitable order on the petitioner's claim for refund within a specified timeframe.
Final Decision: The petition was disposed of with the direction for respondent No.3 to examine the petitioner's case and pass a suitable order within two weeks. The petitioner was given liberty to re-file the application for refund within two days.
CM No.2331-32/2015 (Exemption)
1. Allowed subject to just exceptions.
W.P.(C) 1331/2015
2. Issue notice.
3. Mr. Narula, who appears on advance notice, accepts notice.
3.1 Mr Narula says that he is willing to argue the matter on the basis of the record of the case filed by the petitioner as, the broad facts, necessary for adjudication are not in dispute.
4. Broadly, the case of the petitioner is that at the behest of a sub-contractor, Bharat Heavy Electricals Limited (in short BHEL), it supplied boiler components to National Thermal Power Corporation (in short NTPC) under International Competitive Bidding (in short the ICB).
5. It is common case of both the parties that the Terminal Excise Duty (in short the TED) has been paid by the petitioner. Under the Foreign Trade Policy formulated for period 2009-2014 (in short the FTP), the petitioner, is entitled to benefits of “Deemed Exports”.
5.1 The relevant paragraph applicable to the petitioner is, paragraph 8.3(c), which is extracted herein below:-
“Existing Paragraph 8.3(c)
Exemption from terminal excise duty where supplies are made against ICB. In other cases, refund of terminal excise duty will be given. Exemption from TED shall also be available for supplies made by an Advance Authorisation holder to a manufacturer holding another Advance Authorisation if such manufacturer, in turn, supplies the product(s) to an ultimate exporter.”
6. The petitioner’s grievance is that despite having moved several applications, no formal order has been communicated to it with regard to the applicability of its application for refund of the TED.
6.1 There are, however, on record copies of three (3) file notings based on which the petitioner’s request for refund of the TED has been, evidently, rejected. These file notings are appended on petitioner’s applications dated 14.11.2013, 03.03.2014/06.03.2014 and 24.12.2014. In the paperbook, these notings are found at pages 24, 46 and 47.
6.1 For the sake of convenience, the relevant notings is extracted herein below:
Page 24 (14.11.2013)
“(i) Case is under ICB. As per policy circular 16 dt. 15.3.13, TED is not-refundable as exemption is available under ICB....”
Page 47 (03.03.2014/ 06.03.2014)
“Party is requesting to accept their claim in terms of decision of Gujarat High Court & Delhi High Court decision stating that as per decision the points as per ‘X’ on pre-page becomes inapplicable.
Firm’s case is under ICB, and decision is not applicable in this case.
We have also not received any decision/direction, in this matter.”
Page 46 (24.12.2014)
“You may approach to DGFT if you wish (sic)against Policy circular No.16 dt . 16.3.2013”.
7. To be noted, these notings have been made by respondent No.3, i.e. Joint Director General of Foreign Trade. The first noting is suggestive of the fact that since exemption was available to the petitioner qua the TED, application for refund was not maintainable; though the fact that supplies were made against ICB is established. In this behalf, file noting seems to have placed reliance on a circular dated 15.3.2013.
8. Insofar as the second noting is concerned, it is indicative of the fact that, a decision of this Court and the judgment of the Gujarat High Court was brought to the notice of respondent no.3.
8.1 I am informed that these were: judgment passed by this court dated 11.2.2014, in W.P.(C) No.5160/2013, titled: Kondoi Metal Powders MFG. Co. Pvt. Ltd. v. Union of India and Ors.; and the decision dated 13.2.2014, of the Gujarat High Court, passed in Special Civil Application No.11031/2013, titled: M/s. Alstom India Ltd. v. UOI and Ors, 2014 (301) ELT 446/Guj.
9. In the writ petition, a challenge is laid to the filing noting dated 24.12.2014 and the circular dated 15.3.2013.
9.1 Apart from that, a prayer is made that a direction be issued to respondent No.3 to process the petitioner’s claim for refund, made in the first application, on the subject, which is dated 14.9.2012.
10. I may only note that the circular dated 15.3.2013, bas
