Union of India & Ors v. M/S Motherson Sumi Electric Wires

SUBRAMONIUM PRASAD, J. MAY 01, 2023 B.S. Rohella

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Date of Decision: 01.05.2023 % LPA 362/2019 & CM APPLs. 24661-62/2019 & 8299-8300/2020 UNION OF INDIA & ORS ..... Appellant versus AUROBINDO PHARMA LTD ..... Respondent % LPA 65/2019 & CM APPLs. 4621-23/2019 & 8297-98/2020 UNION OF INDIA & ORS ..... Appellants versus M/S MOTHERSON SUMI ELECTRIC WIRES ..... Respondent % LPA 616/2018 & CM APPLs. 45510-12/2018 & 8211-12/2020 UNION OF INDIA & ORS ..... Appellants versus M/S DEEPAK ENTERPRISES ..... Respondent MEMO OF APPEARANCE: Ms. Shivalakshmi, CGSC with Ms. Ridhima Malhotra and Ms. Srishti Rawat, Advocates for the Appellants/ UOI. Mr. V. Lakshmikumaran, Ms. Charanya Lakshmi Kumaran, Mr.Yogendra Aldak and Mr. Kunal Kapoor, Advocates for the Respondents. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD SATISH CHANDRA SHARMA, CJ. (ORAL) 1. Regard being had to the controversy involved in the aforesaid three cases, they were heard analogously and a common judgment is being passed in these matters. The facts of LPA 616/2018 titled Union of India & Others Vs. M/s Deepak Enterprises are being dealt with hereunder. 2. M/s Deepak Enterprises is a manufacturer of Motor Vehicle Parts (Back Plates) having a unit located in a Domestic Tariff Area (DTA). The Respondent herein filed a writ petition before this Court claiming that during the period January, 2012 to April, 2013, it supplied Back Plates to two 100% Export Oriented Units (EOU's), namely, M/s Danblock Brakes India Pvt. Ltd and M/s Roulands Braking (India) Pvt. Ltd. It was further stated in the writ petition that the said goods were excisable goods and were cleared on payment of excise duty by the aforesaid EOUs and the said EOUs did not provide CT-3 certificates to the Petitioner. 3. It was further stated that it was permissible to supply the goods on payment of Terminal Excise Duty (TED) and subsequently claim refund. The Respondent herein/ Petitioner applied for refund of TED aggregating to Rs.67,18,748/- in respect of goods supplied during the period January, 2012 to 17.04.2013. However, the said claim was rejected by the Joint Director General of Foreign Trade on 05.06.2013 with the endorsement – "as supply is made to 100% EOU, TED is not admissible in terms of policy circular dated 15.03.2013". 4. It is pertinent to note that on 18.04.2013, the Central Government published Notification No. 4 (RE-2013)/2009-2014 in exercise of powers conferred by Section 5 of the Foreign Trade (Development & Regulation) Act, 1992 amending the FTP by substituting paragraphs 8.3(c) and 8.4 of the FTP. 5. The Respondent herein/ Petitioner resubmitted its claim for refund of TED relying on the judgment delivered in the case of Kandoi Metal Powders Mfg. Co. Pvt. Ltd. v. Union of India & Ors, 2014 (302) E.L.T. 209 (Del.), which was delivered by a Division Bench of this Court on 11.02.2014. The Respondent herein/ Petitioner's subsequent claim was also rejected by a communication dated 28.08.2014 clarifying that the Policy Relaxation Committee (PRC) had allowed the refund of TED only to Kandoi Metal Powers Manufacturing Pvt. Ltd. 6. The Respondent herein/ Petitioner being aggrieved by the orders dated 05.06.2013, 23.01.2014 & 28.04.2014 and also the minutes of the meeting of the Policy Interpretation Committee held on 04.12.2012, preferred a writ petition and the learned Single Judge has allowed the said writ petition vide judgment dated 19.01.2018. The relevant portion of the said judgment – as contained in paragraphs 20 to 27, reads as under: "20. In Kandoi Metal Powders MFG. Co. Pvt. Ltd. (supra), the Division Bench of this Court had held that the Cenvat regime under the Central Excise Act, 1944 operate on its own terms and is independent on the rights and liabilities of the parties under the import export policies framed under the Act. The said decision squarely covers the controversy in the present case. 21. In Joint Director general of Foreign Trade v. IFGL Refractories Ltd.: 2002