Refund of TED - Not paying heed to orders of superior courts - Foreign Trade Development Officer should be counseled appropriately - TED to be refunded within two weeks - Rs 10K Cost imposed : High Court
By TIOL News Service
NEW DELHI, MAR 23, 2015: THIS is the second round of litigation for the petitioner.
In the earlier round, an order was passed with a direction to the respondents to examine the case of the petitioner for refund of Terminal Excise Duty and pass suitable orders.
It is the petitioner's case that at the behest of the sub-contractor i.e., Bharat Heavy Electricals Ltd. it had supplied boiler components to National Thermal Power Corporation Ltd. under International Competitive Bidding (ICB).
Admittedly,TED was paid by the petitioner and they sought refund of the said TED as they had not claimed exemption of TED under the Central Excise.
The respondents seek to resist the refund based on the provisions of paragraph 8.3(c) of the Foreign Trade Policy 2009-2014. It is the respondents' stand that since the supplies of boiler components made by the petitioner under ICB are deemed exports, it could have applied for exemption and having not done so, its application for refund is not sustainable.
On merits, the High Court reiterated its observations made in the earlier order dated 11.02.2015 which inter alia reads -
| "17. As indicated above, the common case of parties before me, is that, exemption was not availed of by the petitioner, instead the petitioner ended paying TED. Therefore, the petitioner had two options: First, to seek refund of the Excise Duty from the Excise Department. Second to seek refund from the respondent herein. The petitioner has chosen the latter. The FTP, as it then existed, did not de-bar the petitioner from seeking a refund from one of the two departments, subject to fulfillment of other conditions..." |
Thereafter the High Court noted that in the present case it is an admitted position that the petitioner had not availed of exemption from TED and, therefore, quite logically, the refund of TED, cannot be denied.
On the second objection taken by the department that there is a deficiency in the application inasmuch as the declaration made by NTPC Ltd. was not on its letterhead, the same was held as completely untenable since the document appended clearly showed that it bears the stamp of NTPC Ltd.
The order was set aside and the respondents were directed to refund the TED to the petitioner within two weeks.
The High Court further observed -
"7.1 …the officer who has passed the impugned order has acted in a manner, which is least expected of a Government officer, while exercising powers of adjudication. Adjudicating officer is required to pay heed to the orders of superior courts. In case a Statutory Authority is aggrieved by an order passed by a court, they are entitled to take recourse to an appropriate legal remedy and not ignore the order of the court. Having regard to the approach adopted in the matter, this order will be placed before the superior officer of the officer concerned so that he is counseled appropriately."
Incidentally, the petitioner sought costs of the proceedings and to this plea, the High Court held -
"…In my opinion, in this particular case, the petitioners are entitled to costs, in view of the manner in which the respondents have acted in the matter, which has resulted in the petitioners having to approach the court for the second time. The respondents will also pay costs of Rs.10,000/- to the petitioner. The costs will be paid within the same time frame."
The petition was disposed of.
(See 2015-TIOL-706-HC-DEL-CUS)
