IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 09TH DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT APPEAL No.286 OF 2019 (T-TAR) BETWEEN:
1. DEPUTY DIRECTOR GENERAL OF FOREIGN TRADE, MINISTRY OF COMMERCE, DIRECTORATE GENERAL OF FOREIGN TRADE, UDYOG BHAVAN, NEW DELHI – 1100107.
2. ADDITIONAL DIRECTOR GENERAL OF FOREIGN TRADE, MINISTRY OF COMMERCE, DIRECTORATE GENERAL OF FOREIGN TRADE, UDYOG BHAVAN, NEW DELHI – 1100107. ... APPELLANTS (BY SRI LAKSHMINARYANA N HEGDE, ADVOCATE) AND:
1. M/S ACER INDIA PRIVATE LIMITED, EMBASSY HEIGHTS, 6TH FLOOR, NO.13, MAGRATH ROAD, BANGALORE – 560 103, REPRESENTED BY ALOK BUBEY.
2. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI – 110 001.
3. JOINT DIRECTOR OF FOREIGN TRADE KENDRIYA SADAN, KORAMANGALA, BANGALORE – 560075.
4. ASSISTANT COMMISSIONER OF CENTRAL EXCISE PUDUCHERRY, DIV.1, PUDUCHERRY – 460124. ...RESPONDENTS (BY SRI PRASHANTH S SHIVADASS, ADVOCATE FOR RESPONDENT NO.1, ASSISTANT SOLICITOR GENERAL – SERVED AND UNREPRESENTED) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER DATED 20.03.2018 PASSED BY THE LEARNED SINGLE JUDGE OF THIS HON’BLE COURT IN W.P.NO.64539 OF 2016, CALL FOR ENTIRE RECORDS OF THE PROCEEDINGS IN W.P.NO.64539 OF 2019.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY HEARING, THIS DAY, RAVI MALIMATH J., MADE THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 20.03.2018 passed in Writ Petition No.64539 of 2016 by the learned Single Judge, in allowing the writ petition and directing respondent No.3 therein to consider the refund claim of the petitioners, respondent Nos.3 and 4 therein have filed this appeal.
2. By the order dated 24.7.2019, it was noticed that learned Counsel for the appellants sought time on the ground that the concerned department is considering of making an application to the Apex Court to transfer this appeal and other similar matters to the Apex court. Therefore, time was granted. Subsequently, by the order dated 4.11.2019, it was noticed that if an application for transfer is not made, the appeal would be heard on merits unless there is a prohibitory order by the Apex Court which restrains this Court form proceeding further. Since the same was not done the learned Counsel sought leave to address arguments on merit.
3. The only contention of the appellants is that since the claim for refund was not made at the time of supply of goods, the said claim cannot be made belatedly.
4. The case of respondent Nos.3 and 4 is that during the period from June 2009 till October 2009, the petitioner had supplied computer systems to Export Oriented Units on payment of Terminal Excise Duty. The supply of goods to Export Oriented Units is a deemed export in terms of 8.2(b) of Foreign Trade Policy and the supplier is entitled to claim refund of TED from the Regional authority in terms of 8.3(c) of FTP. Accordingly, the petitioner filed an application for refund and the same was rejected. Hence, the writ petition was filed. On hearing learned Counsels and considering the fact that the claim was not disputed by respondents therein, the learned Single Judge came to the conclusion that the petitioner was entitled for a refund claim and accordingly, allowed the writ petition by quashing the communication dated 31.3.2016.
5. On hearing the learned Counsels, we do not find any merit in this appeal. It is undisputed that the goods supplied to Export Oriented Units at the relevant point of time was entitled for tax refund. Therefore, even though the tax that was paid at the time when the goods were exported it did not entitle the respondents to retain the same. Due to various reasons, tax was paid at the time of exporting the goods. In fact the appellants does not dispute the fact that the tax has been wrongly paid. If it is not disputed it cannot be retained. That is what the Learned Single Judge has held. The learned Single Judge has rightly allowed the petition. Hence, writ appeal is dismissed.
Sd/- JUDGE Sd/- JUDGE CS