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1. The petitioner seeks a direction to consider its application for refund of Terminal Excise Duty (in the sum of `46,54,295/-) vis-a-vis deemed exports made to Vimal Agro Products Pvt. Ltd. and TATA Coffee Ltd.

2. The petitioner manufactures tin containers, which had been supplied to various Export Oriented Units (EOUs). Those EOUs in turn exported the final product using tin containers as packaging material. Such supplies made were being treated as deemed export under the provisions of Foreign Trade Policy 2009-14 framed under the Foreign Trade (Development and Regulation) Act. It is alleged that Terminal Excise Duty (TED refund claims) were entertained by the Director General of Foreign Trade and refund sanctioned as the containers were ultimately used for export. While doing so, circular no.16 was issued on 15.03.2013, stating that in the case of supply of goods inter alia to 100% EOUs no refund of Terminal Excise Duty (TED) will be provided by the DGFT authorities. This was on the premise that the supplies were exempted from payment of excise duty and that if there was any error or oversight in the collection of tax, the concerned agency would refund it rather seeking reimbursement from DGFT. This was subsequently followed by another notification dated 18.04.2013 which sought substitution of para 8.3 (c) of the Foreign Trade Policy and provided that refund of TED would be given if exemption is not available; since exemption from CVD was available for supplies. The petitioner contended that an application was filed for refund of TED paid to the office of the Joint DGFT in respect of supply of tin containers to Vimal Agro Products Pvt. Ltd. against payment of Terminal Excise Duty (TED) during January 2012 to March 2013 i.e. prior to the issue of Circular No.l6 dated 15.03.2013. This application was returned. Subsequently, another refund application (covering the period April, 2012 to January, 2013) made in respect of TATA Coffee Ltd. too was not taken into consideration. The petitioner then applied refund claim with Central Excise Department for the same on 11.03.2014. The Dy. Commissioner of Excise thereafter issued a show cause notice on 01.10.2014 proposing to disallow the refund claim, which was contested. The refund claim was rejected by the excise authority by order-in-original dated 29.05.2015. Aggrieved, the petitioner approached the Dy. Commissioner in appeal, which was rejected on 16.11.2016. The petitioner unsuccessfully approached the CESTAT, which in its Chandigarh Bench, rejected the appeal.

11. That para 8.3(c) of FTP 2009-14, provides for benefit of the Terminal Excise duty (TED). This covers both - TED refund as well as TED exemption, as applicable for different types of cases. TED refund is allowed where TED exemption is not available. The Respondent submit that these provisions have been clarified vide Policy Circular No.16 dated 15.03.2013 issued by DGFT. The Respondents also submit that this policy circular has not introduced any new conditions/provisions, it has merely clarified the provisions of Para 8.3(c) of FTP-2009-14, which has already been in existence.

12. That none of the provisions laid down in the Handbook of the Procedure or the Foreign Trade Policy permits an exporter to make a choice on the method of seeking benefit regarding the TED. It is no where mentioned that the exporter may first opt for the payment of TED and thereafter he may seek refund of the same. TED exemption or refund is to be taken as provided for in FTP 2009-14, by reading various provisions of FTP 2009-14, in a harmonious manner.

13. It is also admitted that Para 8.3(c) extends the benefits under deemed exports for the supplies which qualify as deemed exports. The qualified Deemed Exports are undoubtedly eligible for the corresponding benefits, as applicable under Para 8.3 (c), one of the benefits is the TED. Para 8.3 (c) of FTP 2009-14, covers both TED refund as well as exemption from TED for different types of cases. TED refund is allowed where TED exemption is not available.