Union of India & Ors v. Alstom India Limited

order as to costs.

CHIEF JUSTICE

JAYANT NATH, J JULY 28, 2015 'anb'/kks

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 28thJuly, 2015 + LPA 192/2015 UNION OF INDIA & ORS .....Appellants Versus ALSTOM INDIA LIMITED ..... Respondent + LPA 196/2015 UNION OF INDIA & ORS ..... Appellants Versus ALSTOM INDIA LIMITED ..... Respondent Present:- Mr. Sanjay Jain, ASG with Mr. Sanjeev Narula, CGSC, Mr. Ajay Kalra, Adv. for appellants. Mr. Sujit Ghosh with Ms. Kanupriya Bhargava & Ms. Pragya Awasthi, Advs. for respondent/Alstom India Ltd. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE JAYANT NATH MS. G. ROHINI, CHIEF JUSTICE: 1. These matters being inter-linked are heard together and disposed of by this common judgment. 2. The respondent in both the appeals, i.e. M/s Alstom India Limited is a company engaged in setting up of Power Plants including project engineering, procurement, construction and commissioning for its customers and supply of goods to various contractors and project authorities. The said company (hereinafter referred to as "the writ petitioner") filed W.P. No. 1331/2015 pleading that M/s National Thermal Power Corporation (NTPC) which is engaged in the project of setting up a Super Thermal Power Projectin the State of Bihar awarded a contract to BHEL for the supply of steam generated package by following the procedure of International Competitive Bidding (ICB) and that the writ petitioner being a sub-contractor of BHEL supplied boiler components during the period from 23.09.2010 to 31.01.2011 to NTPC on payment of Terminal Excise Duty (TED). According to the writ petitioner, the goods so supplied against ICB are exempted from duty of excise and therefore an application was made for refund of TED. Alleging that the said claim was erroneously rejected by the Director General of Foreign Trade (DGFT), Ministry of Commerce & Industry, the writ petitioner filed W.P. No.1331/2015. The said writ petition was disposed of by the learned Single Judge by order dated 11.02.2015 with a direction to DGFT to pass a suitable order within two weeks in the light of the observations made therein. 3. In pursuance thereof, DGFT passed an order dated 24.02.2015 rejecting the refund claim of TED of the writ petitioner. The said order dated 24.02.2015 was challenged by the writ petitioner by filing W.P. No. 2344/2015 and the same was disposed of by the learned Single Judge by order dated 11.03.2015 thereby setting aside the order dated 24.02.2015 and directing the respondents to refund the TED to the writ petitioner within two weeks. 4. Hence, these two appeals by the Union of India and others who are the respondents in the writ petitions. While LPA No.192/2015 is directed against the order dated 11.03.2015 in W.P. No.2344/2015, LPA No.196/2015 is directed against the order dated 11.02.2015 in the other writ petition, i.e. W.P. No.1331/2015. 5. We have heard Shri Sanjay Jain, learned ASG appearing for the appellants and Shri Sujit Ghosh, the learned counsel appearing for the respondent. 6. Section 5A of the Central Excise Act, 1944 (for short "the Act") empowers the Central Government to grant exemption from duty of excise either absolutely or subject to such conditions as may be specified. In exercise of the powers conferred under Section 5A of the Act, the Central Government issued the Notification dated 01.03.2006. As per Entry 91 of the said Notification, all goods supplied against International Competitive Bidding (ICB) are exempted from duty of excise. 7. That apart, Export and Import Policy, 2009-2014 formulated by the Central Government in exercise of the powers conferred by Section 5 of the Foreign Trade (Development and Regulation) Act, 1992 (for short "FTDR Act") also provides for certain exemptions. Chapter 8 specifically provides for "deemed exports" specified therein with reference to those transactions in which though the goods supplied do not leave the country, supplies made to the projects specified therein are treated equivalent to exports granting certain fiscal benefits. As pe