M/s. Motherson Sumi Electric Wires Vs UOI & Ors. (Delhi High Court)
Petitioner has contended that it was not possible for it to avail of exemption from Central Excise Duty under the notification No.22/2003-CE, dated 31.03.2003 till such time 100% EOU provides a CT-3 certificate. That being stated, in my opinion, it may not be necessary to deliberate on this aspect of the matter as at the relevant point in time the worst that could be said against the petitioner is that it had available to it two options, first, to claim exemption and second, to pay duty and claim refund. This is, especially so, in view of the fact that in the instant case supplies of goods were made by the petitioner to other divisions of MSSL which had a status of EOUs. The pivotal point is that the FTP 2009-2014 conferred a right on the petitioner, who, admittedly, was a DTA supplier, at the relevant point in time, to seek refund of TED, as the supplies had been made to 100% EOUs, albeit, under a non-ICB route.
To my mind, the argument that since excise duty was not paid via cash but was paid by utilizing the CENVAT credit route and hence, the petitioner would not be entitled to claim refund is unsustainable as there is no bar in law in paying duty by utilizing CENVAT credit (See paragraph 17 of Jayaswal Neco Ltd.).
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