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Showing contexts for: deemed export FTP in Gujarat State Electricity Corporation ... vs Union Of India on 29 June, 2018Matching Fragments
"(f) Supply of goods to any project or purpose in respect of which the Ministry of Finance, by a notification, permits the import of such goods at zero customs duty"
Thus, in respect of goods imported for specified projects, where the customs duty is exempted, such supplies also enjoys the deemed export benefits. Thus, both customs duty benefit and benefit under the FTP (deemed export benefits) could be simultaneously availed and there is no bar against the same.
[5.30] It is further submitted that the concessional rate of duty of nonmega power projects under the customs notification is an unconditional benefit. Thus, the project authority availing the benefit of the said notification has the ability to import the capital goods from a vendor of its choice without any fetters on pricing etc. However, a Project owner desirous of availing the deemed export benefit of duty drawback under the FTP is mandatorily required to follow the ICB procedure and is required to grant contract to the lowest bidder. The Project owner under the FTP, desirous of claiming deemed export benefit, do not have the liberty of picking and choosing vendors of his own choice. Thus, it is submitted that there is a big difference between the benefit under the customs law and that under the FTP.
[9.1] Number of submissions have been made by the learned Counsel appearing on behalf of the respective parties. However, before considering the other submissions it will be appropriate first to consider whether the petitioner shall be entitled to the deemed export drawback as claimed in terms of provisions of Chapter 8 of the FTP or not?
[9.2] It is the case on behalf of the petitioner that in terms of provisions of Chapter 8 of the FTP read with Circular dated 05.12.2010, the petitioner shall be entitled to the benefits of deemed export drawback inasmuch as (a) the supply of goods to the power project under the contract (with Alstom) was made under the procedure of ICB (International Competitive Bidding); (b) the goods (imported from Alstom) were supplied to power projects and (c) the condition that the goods should be manufactured in India is also satisfied inasmuch as the imported goods were used to set up a power plant involving fabrication, assembly, erection of power plant at the site of the project and the above process shall constitute 'manufacturing' as per the definition given in para 9.36 of the FTP read with Circular dated 05.12.2010 issued by the respondent No.2. On the other hand it is the case on behalf of the respondents and even the PIC that one of the conditions of Chapter 8 which is required for the purpose of grant of deemed export drawback as per the provision of Chapter 8 of the FTP is that the imported goods for which the benefits of deemed export duty drawback is claimed cannot be said to be "manufactured in India". While considering the aforesaid issue / question whether the petitioner shall be entitled to the deemed export duty drawback under Chapter 8 of the FTP, relevant clauses of Chapter 8 are required to be referred to and considered which are as under:
[10.0] Now, so far as the challenge to the impugned decision by the respondent No.3 on the ground of principle of promissory estoppel and legitimate expectation of the petitioner is concerned, at the outset it is required to be noted that it is the case on behalf of the petitioner that DGFT have been regularly allowing the deemed export drawback to various power projects in the past. However, no such examples are forthcoming. It is required to be noted that the only averment in the petition with respect to the promissory estoppel are contained in para E2. Considering averments in para E2, it is the case on behalf of the petitioner that as the petitioner who have acted on the basis of the promise made by the Government notified in the FTP for grant of duty drawback to supplies made to the power projects and as the petitioner have fulfilled all the conditions laid down in the FTP for claiming deemed export duty drawback, the decision as per para 3 of the impugned minutes of meeting of the PIC and the subsequent rejection letters issued by Additional DGFT to deny the legitimate drawback claims of the petitioner on extraneous grounds are bad in law in view of the principles of promissory estoppel. However, it is required to be noted that the impugned decision is absolutely in consonance with the relevant provisions of the FTP which are discussed in detail hereinabove. As per catena of decisions of the Hon'ble Supreme Court as well as this Court, as such there cannot be any estoppel against any statute and/or statutory provision. As observed hereinabove Chapter 8 of the FTP is a complete Code in itself. There are no further averments in the petition that either because of some promise and/or representation that the petitioner shall be eligible to the deemed export duty drawback and thereafter the goods were imported by the petitioner. There is no promise by the Government. The FTP applicable at the relevant time is very clear. The petitioner has not pleaded that it has acted on such promise. Therefore, on facts the decisions relied upon by the learned Counsel appearing on behalf of the petitioner in the case of Motilal Padampat Sugar Mills Co. Ltd. (Supra); Nestle India Ltd. & Anr. (Supra) and MRF Ltd., Kottayam (Supra) shall not be applicable to the facts of the case on hand and/or shall not be of any assistance to the petitioner. Therefore, as such the impugned decisions cannot be said to be hit by principles of promissory estoppels and/or legitimate expectation as contended on behalf of the petitioner.