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4. It is stated that the Foreign Trade Policy (FTP) 2009-2014 under Chapter 6 provides for an Export Oriented Unit Scheme (hereinafter referred to as "the EOU Scheme"). Chapter 6 of the Hand Book of Procedures (HBP) Volume-I deals with the procedure, inter alia, of EOUs. The claim of the petitioner is that the supply of goods at the said units located in DTA is a deemed export in terms of Para 8.5 of FTP 2009-2014. In terms of Para J.V.Salunke,PA 913-WP.7210.2017.doc 8.3(b) of the FTP, the supplier of the goods to EOU is entitled to duty drawback at the rates specified in the Schedule of the All Industry Rate of Duty Drawback issued by the Department of Revenue. The extracts from these paragraphs are set out in the petition. It is then stated that section 74 of the Act provides for grant of the drawback on both, Customs Duties as well as Central Excise Duties paid on goods (raw materials or inputs) used in the manufacture of export goods. Under section 75 of the Act, the exporter is entitled to drawback based on All Industry Drawback Rates, Brand Rate Drawback and Special Brand Rate Drawback. Then, it is stated that by section 75 of the Customs Act, 1962, section 37 of the Central Excise Act, 1944 and section 93A read with section 94 of the Finance Act, 1994, the first respondent to this petition, namely, the Union of India made the Customs, Central Excise and Service Tax Drawback Rules, 1995 (hereinafter referred to as "the Drawback Rules").

5. Rule 3 and Rule 7 of the Drawback Rules are relied upon together with a notification dated 22nd September, 2011, copy of which is at Exhibit 'E', to urge that the petitioner is entitled to such drawback. However, a policy circular has been issued by the authorities under the Foreign Trade (Development and Regulation) Act, 1992, which says that the deemed export J.V.Salunke,PA 913-WP.7210.2017.doc drawback in terms of Para 8.3(b) of the FTP, including as per Column 'B' of All Industry Rate of Duty Drawback under the Duty Drawback Schedule of the Department of Revenue is not admissible if the facility of CENVAT Credit/rebate is availed. However, if the basic customs duty has been paid, then, that is refundable in terms of para 8.5 of the FTP. However, Para 8.5 prescribes that such supplies shall be eligible for deemed export drawback on customs duty paid on inputs/components. Thus, there is a clarification that basic customs duty paid can be taken back as brand rate of duty drawback, based on actual duty paid documents as per the procedure prescribed in Chapter 8 of the FTP and Chapter 8 of the HBP Volumn-I. It is in these circumstances that the petitioner stated that in the past, drawback at the rate mentioned in this Schedule (Column 'B') of the Schedule of the All Industry Rate of Duty Drawback was granted.

19. In the instant case, the petitioner's applications at pages 68 and 91 to 95 of the papers book in clearest terms stated that they have purchased partially polyester yarn during the period 1 st October, 2012 to 31st March, 2013 by making payment of excise duty and education cess from M/s. Beekaylon Synthetics Private Limited and B. F. Industries Limited, which is treated as deemed export and entitled for benefit of duty drawback at All Industry Rate. The drawback of 4% is specified in Box 'A' (when no CENVAT Credit is availed) and also 4% in Box 'B' (when CENVAT Credit is availed). When same rate is presented in Box 'A' and 'B', the exporter is entitled for drawback and issue of input credit availed or not is not relevant. Accordingly, the petitioner stated that they are claiming drawback in respect of polyester filament yarn supplied to their EOU and they enclosed the documents, which are to be found at pages 68 and 91 of the paper book. The petitioner was aggrieved and dissatisfied with the fact that its application was rejected without application of mind earlier. Later on, they approached this court and this court directed a fresh consideration of its applications. Respondent no. 3 agreed to such a course and pursuant to the directions in the earlier writ petition, a speaking order has been passed. The speaking order J.V.Salunke,PA 913-WP.7210.2017.doc though refers to the two applications made by the petitioner, proceeds on the footing that the FTP and HBP and the clarification issued by the DGFT would have to be taken into consideration. Then, it is stated that the petitioner is entitled to claim the refund of duty drawback as per para 8.5 of the FTP on customs duty paid on inputs. That is not disputed at all. The only issue is the route through which the petitioner is entitled to claim the refund. The reliance was placed on para 8.5 of the FTP and particularly the words "supplies will be eligible for deemed export drawback in terms of Para 8.3(b) of FTP on Central Excise paid on inputs/components, provided CENVAT Credit facility/rebate has not been availed by the applicant". It further provides that "....such supplies will, however, be eligible for deemed export drawback on customs duty paid on inputs/components" . In this case, the applicant's claim is based only on the premise that they have option to seek the refund on duty drawback even if the CENVAT Credit has been availed. It is observed in the impugned order that if the supplier does not claim CENVAT Credit, then, it has the clear option to claim the duty drawback as per Column 'A' of All Industry Rate of Duty Drawback Schedule and these rates are applied for deemed exports mutatis-mutandis. It is simple straight option available to the domestic supplier. However, in case a supplier opts to avail CENVAT Credit, then also option has J.V.Salunke,PA 913-WP.7210.2017.doc been provided that basic customs duty paid can be taken back as brand rate of duty drawback, based upon documents evidencing payment of actual duty. It is in these circumstances that the order proceeds on the footing that there is a bar now in the FTP of 2015-2020. However, there is a policy circular dated 30 th October, 2013 issued to clarify the aforesaid position. Thus, the FTP 2015-2020 only takes into account the clarified position of FTP 2009-2014 and in no way can be considered as the amendment of policy provision. Therefore, the contention of the applicant is not tenable.

(5) No amount or rate of drawback shall be determined in respect of any of the goods (falling within heading 1006 or 2523) of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975)."

22. The petitioner's applications very clearly stated that there are schemes, one is the Export Promotion Scheme and which is very clearly referable to Chapter 22, whereunder relief of customs and excise duty suffered on the inputs used is allowed to the exporters. In that, there is a scheme for All Industry Rate of Duty Drawback. The fixation of such rates is as a percentage of J.V.Salunke,PA 913-WP.7210.2017.doc FOB price of export product Very often, the export prices are obtained for a product or class of products which have no co- relation with the actual duties suffered on inputs used, which is sought to be refunded to exporters as drawback. In order to safeguard Government revenue but also to be fair to exporters, reasonable duty drawback caps have been imposed in respect of many export products having rates on FOB basis. These caps essentially reflect the average duty incidence suffered on the inputs used in the manufacture of the particular goods exported by several exporters with different prices and they are fixed on the basis of data supplied by the Export Promotion Councils and collected by Directorate from other sources. What we found from the compilation tendered is that there are duty drawback rates effective from 1st October, 2011. In that, there is a Schedule and that Schedule under heading Chapter 3 includes Polyester Filament Yarn. The tariff item is 540203. Box 'A', drawback is when CENVAT facility has not been availed and Box 'B', drawback is when CENVAT facility has been availed. There is drawback rate and drawback cap per unit. What we have been shown is the judgment of this court and which clearly holds that the scheme is not to deny the benefit by placing obstacles and hurdles. In the instant case, Chapter 8 of the HBP is titled as "Deemed Exports". In that, there is a procedure for claiming deemed export J.V.Salunke,PA 913-WP.7210.2017.doc drawback and terminal excise duty refund/exemption. That is in Para 8.3.1. In that, it is stated in Para 8.3.3 that where All Industry Rate of Drawback is not available or same is less than 4/5th of duties actually paid on materials or components used in production or manufacture of the said goods, an application in ANF 8 along with prescribed documents may be made to RA or DC for fixation of brand rate. The recipient may claim benefits on production of a suitable disclaimer from the supplier along with a self declaration in the format given in Annexure II of ANF 8, regarding non-availment of CENVAT credit in addition to prescribed documents. Then, it is stated in Para 8.3.6 that subject to procedure laid down in HBP, Customs and Central Excise Duty Drawback Rules, 1995 shall apply mutatis mutandis to deemed exports. It is on this basis, and to our mind, the petitioner rightly claimed that they are entitled to claim this drawback. That is not disputed either. It is in these circumstances that we are of the opinion that the issue was unnecessarily confused and compounded further by the respondents. Once there was no dispute about the entitlement of the petitioner, then, we do not see why the petitioners were denied the benefit. The petitioner has also pointed out, and to our mind, rightly, in the application as also the grounds of this petition that they are otherwise entitled to drawback at the rate J.V.Salunke,PA 913-WP.7210.2017.doc mentioned in Column 'B'. That could not have been denied by relying upon the policy circular dated 30 th October, 2013 and relying upon Para 805 of FTP 2009-2014. In that regard, the petitioner also rightly placed reliance on Para 8.3.3 of the HBP. Thus, Para 8.5 of the FTP read with Para 8.3.3 of HBP makes it clear that while claiming deemed export drawback in terms of 8.3, there is an option to claim drawback at the rate specified in the Schedule of All Industry Rate of Duty Drawback or the fixation of brand rate. Once the respondent no. 1 has published revised Schedule of All Industry Rates of Duty Drawback for 2011-2012 and that Schedule of All Industry Rates published by respondent no. 1 has two columns, namely, Column 'A' and Column 'B', then, this conscious specification of two separate rates would enable the recipient EOU to claim drawback under Column 'B' on production of suitable disclaimer. That condition has been prescribed. It is in these circumstances that we are of the opinion that the petitioner's claim could not have been rejected. In any event, the rejection is not in tune with the policy and the HBP. An unnecessary and uncalled for controversy was generated only because of the route chosen by the petitioner. We do not see how merely for this alleged fault or deficiency could the whole claim have been denied. It is in these circumstances that the conclusion of the respondents that the refund of duty drawback for customs J.V.Salunke,PA 913-WP.7210.2017.doc duty on inputs can be made only by way of brand rate of fixation and hence, the claim for refund as per Column 'B' of the All Industry Rates of Duty Drawback Schedule is rejected cannot be sustained.