Delhi High Court
Alstom India Ltd. vs Union Of India & Ors on 11 March, 2015
Author: Rajiv Shakdher
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2344/2015
ALSTOM INDIA LTD. ..... Petitioner
Through: Mr. Sujit Ghosh, Ms. Kanupriya
Bhargava and Ms. Pragya Awasthi, Advocates
versus
UNION OF INDIA & ORS ..... Respondents
Through: Mr. Sanjeev Narula, CGSC with Mr.
Ajay Kalra, Advocate
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 11.03.2015
CM No.4201/2015 and 4202/2015 (Exemption)
1. Allowed subject to just exceptions.
W.P.(C) 2344/2015 and CM No.4200/2015 (stay)
2. Issue notice to the respondents.
3. Mr. Narula accepts notice on behalf of the respondents. Mr.
Narula says that he will argue the matter based on the material placed
on the record.
4. This is a second round of litigation for the petitioner. The
petitioner had approached this court earlier by way of a writ petition,
which was numbered as : WP(C) 1331/2015. The said writ petition
was disposed of vide order dated 11.02.2015.
4.1 After alluding to the facts arising in the case, an operative
direction was issued to the effect that the respondents will examine
the case of the petitioner for refund of Terminal Excise Duty (in short
TED) and pass suitable orders.
4.2 Since, the facts are, broadly, indicated in the order dated
11.02.2015, passed in WP (C) 1331/2015, the same need not be
repeated herein.
4.3 I may only briefly note that it is the petitioner's case that at the
behest of the sub-contractor i.e., Bharat Heavy Electricals Ltd.
(BHEL), it had supplied boiler components to National Thermal
Power Corporation Ltd. (NTPC), under International Competitive
Bidding (ICB).
4.4 Admittedly, the TED was paid by the petitioner. The petitioner
seeks refund of the said TED as, it has not sought exemption of TED
under the Central Excise Act, 1944.
4.5 The respondents seek to resist the refund based on the
provisions of paragraph 8.3(c) of the Foreign Trade Policy 2009-2014
(in short the FTP). 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.
4.6 In the impugned order dated 24.02.2015, Foreign Trade
Development Officer after setting out briefly the facts of the case and
adverting to paragraph 8.3(c) of the FTP has rejected the claim of
refund on the ground that deficiencies contained in the application,
were not cured.
4.7 Strangely though, the officer concerned in the impugned order
has made no reference to the observations of this court, made in
paragraph 16 and 17 of the order dated 11.02.2015, passed in WP(C)
1331/2015.
5. Mr. Narula, who appears for the respondents, says that an
appeal is maintainable against the impugned order. Mr. Narula also
relies upon the impugned order to contend that even on merits no
relief can be granted to the petitioner.
6. I tend to disagree with the submissions of Mr. Narula, both on
the ground of maintainability as well as on merits. As pointed out by
the learned counsel for the petitioner, an appeal under Section 15 of
the Foreign Trade (Development and Regulation) Act, 1992 (in short
FTDRA) is maintainable in respect of an order passed by the
adjudicating authority under Section 13 of the FTDRA. Section 13,
however, adverts to the power of the adjudicating authority to impose
penalty or pass an order of confiscation.
6.1 Quite clearly, the impugned order does not fall within the ambit
of Section 13 of the FTDRA. Therefore, the said objection is
untenable.
6.2 Mr. Narula also relies upon an order of the Single Judge dated
27.03.2014, passed in M/s. Motherson Sumi Electric Wires Vs.
Union of India and Ors. to support this submission. The said order
of the learned Single Judge is a brief direction to prefer an appeal. A
perusal of the order would show that, quite clearly, the provisions of
Section 13 of FTDRA were not brought to the notice of the learned
Judge. Besides, in that case, the court was considering whether the
petitioner before it was an aggrieved person.
6.3 In so far as the merits are concerned, I may only reiterate the
observations made by me in paragraph 16 and 17 of the order dated
11.02.2015. The same are extracted hereinbelow :-
"..16. Insofar as prayer (b) is concerned, which pertains to
the applicability of circular dated 15.03.2013, according to
me, the said circular does not need to be struck down. The
circular is based on an administrative interpretation of the
FTP. The FTP, according to me, is clear, that where
exemption has been availed of, no refund is payable to such
an applicant.
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 fulfilment of other
conditions..."
6.4 In this case the admitted position, is that, the petitioner has not
availed of exemption from TED. Therefore, quite logically, the
refund of TED, cannot be denied.
6.5 I may only note the other objection taken in the impugned
order, is that, there is a deficiency in the application, in as much as,
the declaration made by NTPC Ltd. was not on its letterhead; an
objection which is completely untenable. The document, which is
appended at pages 49-50 of the paper book, clearly shows that the
said document bears the stamp of the NTPC Ltd. The document
declares that Cenvat Credit/Rebate under the Central Excise Rules has
not been availed by NTPC Ltd. Therefore, this objection cannot stand
in the way of the petitioner getting refund in the matter.
7. In these circumstances, the impugned order is set aside. The
respondents are directed to refund the TED to the petitioner. The
needful will be done as expeditiously as possible though no later than
two weeks from today.
7.1 I may only note that 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 counselled appropriately.
7.2 At this stage, the petitioner seeks costs of the proceedings. 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.
8. With the aforesaid observations in place, the captioned petition
and the pending application are disposed of.
9. Dasti.
RAJIV SHAKDHER, J
MARCH 11, 2015
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