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Supreme Court of India
Nabha Power Limited vs Punjab State Power Corporation Limited on 19 August, 2025
Author: Dipankar Datta
Bench: B. R. Gavai, Dipankar Datta
2025 INSC 1002
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8694 OF 2017
NABHA POWER LIMITED … APPELLANT
VERSUS
PUNJAB STATE POWER CORPORATION
LIMITED AND OTHERS …RESPONDENTS
WITH
CIVIL APPEAL NO. 8739 OF 2017
JUDGMENT
AUGUSTINE GEORGE MASIH, J.
1. These two appeals pertain to the following common
questions of law:
(i) Whether deemed export benefits under Para 8.3 of
Foreign Trade Policy 2009-2014 (hereinafter
“FTP”) were legitimately available to the Appellants
as of the bid cut-off date and would notifications
Signature Not VerifiedDigitally signed by
NITIN TALREJA
by Directorate General of Foreign Trade
Date: 2025.08.19
17:10:05 IST(hereinafter, “DGFT”) amount to “Change in Law”
Reason:
Civil Appeal No. 8694 of 2017 Page 1 of 60
under the Power Purchase Agreement dated
18.01.2010 (hereinafter, “PPA”);
(ii) Whether the Press Release of Cabinet Decision
pertaining to change of threshold of so-deemed
export benefits would constitute a “Change in
Law” under the PPA; and
(iii) If so, whether Appellants are entitled to
restitutionary relief in the form of compensation.
2. The Civil Appeal No. 8694 of 2017 as filed by the Nabha
Power Limited (hereinafter, “NPL”) under Section 125 of
the Electricity Act, 2003 (hereinafter, “EA 2003”), arises
from the Common Judgment dated 04.07.2017
(hereinafter, “Impugned Judgment”) in Appeal No. 47 of
2015 passed by the Appellate Tribunal for Electricity,
New Delhi (hereinafter, “APTEL”) owing to rejection of
the claim(s) moved by the NPL for relief under Article
13 of the PPA executed by it with the Punjab State
Power Corporation Limited (hereinafter “PSPCL”), and
primarily the challenge to the post-bid withdrawal of
fiscal incentives which were allegedly available earlier
under the FTP and their classification as a “Change in
Law” event under the PPA.
3. Similarly, Civil Appeal No. 8739 of 2017, filed by the
Talwandi Sabo Power Limited (hereinafter, “TSPL”) also
arises from the same Impugned Judgment in Appeal
Civil Appeal No. 8694 of 2017 Page 2 of 60
No. 32 of 2015 by APTEL. Since both of the aforesaid
appeals before the APTEL involved common issues,
they were heard together. The prime grievance for both
the Appellants therein was that the Punjab State
Electricity Regulatory Commission at Chandigarh
(hereinafter, “State Commission”) had, although vide
separate orders, held them to be not eligible for the
aforementioned benefits and liable to pass on the same
to PSPCL, Respondent No. 01 herein.
4. Both, NPL and TSPL, are Special Purpose Vehicles
(hereinafter, “SPVs”) which were formulated to develop
the concerned power projects. This was done under
Section 63 of the EA 2003 through Tariff-Based
Competitive Bidding. PSPCL is one of the successors of
the Punjab State Electricity Board (hereinafter, “PSEB”)
and is a state-owned generating and distributing
company in Punjab.
5. Since both these appeals arise out of the same
Impugned Judgment with issues being common, the
same are being dealt with together. We shall refer and
adopt facts from the Civil Appeal No. 8694 of 2017 as
preferred by NPL, treating it to be the main appeal.
6. The NPL was incorporated on 25.09.2007 by PSEB to
develop a dual 700 Mega Watt coal thermal power
project at Rajpura in Punjab (hereinafter, “Project”).
Civil Appeal No. 8694 of 2017 Page 3 of 60
While the PSEB was unbundled, 100 percent of the
shares of the NPL were acquired by the Respondent No.
03, being L&T Power Development Limited (hereinafter,
“L&T”) through the bidding process initiated on
10.06.2009, with final date of bid submission being
09.10.2009, and after an evaluation of the technical
and financial bids by a committee chaired by the
Principal Secretary, Department of Power, Government
of Punjab. Thereby, NPL became a wholly owned
subsidiary of L&T. Consequently, the PPA was executed
between NPL and PSPCL.
7. In the interregnum, the Government of India,
exercising its powers under Section 5 of the Foreign
Trade (Development & Regulation) Act, 1992
(hereinafter “FTP Act 1992”) read with Paragraph 1.2 of
the FTP, notified the Foreign Trade Policy, 2009-2014
(hereinafter, “FTP”), on 27.08.2009. Moreover, the
Union Cabinet vide its Decision dated 01.10.2009
reduced the threshold qualification as a Mega Power
Project to 500 Mega Watt from 1,000 Mega Watt for
single location projects under the Mega Power Policy,
2006 (hereinafter, “MPP 2006”). On the same date,
there was a press release by the Press Information
Bureau that the Union Cabinet has taken a decision
that it is not mandatory for an inter-state sale of power
Civil Appeal No. 8694 of 2017 Page 4 of 60
from a project to be eligible under the MPP 2006
(hereinafter, “Press Release dated 01.10.2009”).
8. This Decision dated 01.10.2009 led to two changes:
(i) Amendment of the existing eligibility criteria of
being a MPP as set out under Entry 400 of the
Principal Customs Notification No. 21 of 2002
dated 01.03.2002 by the Department of Revenue,
Ministry of Finance, Government of India through
its powers under Section 25 of the Customs Act,
1962 (hereinafter, “CA 1962”);
(ii) Issuance of Memorandum No. A-118/2003-IPC
modifying the MPP (hereinafter, “MPP 2009”).
9. It is pertinent to note that it was only through
Notifications Nos. 91/2009-Cus dated 11.12.2009 and
92/2009-Cus dated 14.12.2009 that the aforesaid
benefits were brought into effect.
10. In pursuance of the same, NPL sought grant of status
as a Mega Power Project from Ministry of Power,
Government of India, which was granted to it on
30.07.2010.
11. For its application to obtain an Essentiality Certificate
from the Department of Energy, Government of Punjab,
NPL sought a recommendation from PSPCL to the effect
Civil Appeal No. 8694 of 2017 Page 5 of 60
that Essentiality Certificate be issued to NPL for
seeking concessions or exemption from payment of
customs duty while importing capital goods. Against
this, NPL gave an undertaking vide Affidavit dated
23.05.2011 that any benefits which shall accrue on
NPL for its change of status to a Mega Power Project,
shall be passed on to PSPCL. The Essentiality
Certificate was thereafter issued on 13.06.2011.
12. Another agony came for the Appellant when the
Directorate General of Foreign Trade (hereinafter,
“DGFT”) convened a Policy Interpretation Committee
(hereinafter, “PIC”) on 15.03.2011, which opined that
Terminal Excise Duty exemptions under the FTP would
not be available for the supplies made to a non-MPP
(with cut-off date being 01.10.2009) and any such duty
shall not be refunded in any manner including as a
drawback under Paragraph 8.3(b) of the FTP. It further
clarified that if a Bill of Entry is in the name of a
project authority, the deemed export benefits would not
be made available. To effectuate the same, Public
Notices dated 27.04.2011 and 28.04.2011 were issued
under the FTP Act 1992, amending the FTP.
13. Since the legalities had made NPL ineligible for the
assumed benefits on their end, it moved Petition No. 30
of 2012 before the State Commission seeking (a) a
declaration that the Mega Power benefits were factored
Civil Appeal No. 8694 of 2017 Page 6 of 60
into the bid and hence did not warrant pass-through to
PSPCL, and (b) compensation under Article 13.1.1(ii) of
the PPA for the withdrawal of FTP benefits post the cut-
off date of 02.10.2009, alternatively.
14. The State Commission, while dismissing the Petition
vide Order dated 12.11.2012 (hereinafter, “First Order
of Commission”), held that since the NPL had elected to
avail benefits under the MPP 2009, it was precluded
from claiming concurrent benefits under the FTP.
Moreover, withdrawal of benefits by DGFT did not
constitute as a “Change in Law” within the meaning of
Article 13 of the PPA.
15. Assailing the findings of the State Commission, NPL
moved Appeal No. 29 of 2013 before APTEL, which, in
its Order dated 30.06.2014 (hereinafter, “First Order of
APTEL”), remanded the matter to the State Commission
for reconsideration of the issue on the FTP. It directed
the State Commission to also ascertain and opine as to
whether the benefits under the FTP were available to
the NPL as on the cut-off date.
16. On remand, the State Commission vide its majority
opinion culminating in its Order dated 16.12.2014
(hereinafter, “Second Order of Commission”) in Petition
No. 30 of 2012 reiterated its earlier conclusions,
observing that the benefits of the FTP were neither
Civil Appeal No. 8694 of 2017 Page 7 of 60
available to NPL as on the cut-off date nor their
withdrawal attract the consequences of “Change in
Law”. It further went on to observe that NPL had not
produced contemporaneous DGFT endorsements to
substantiate its eligibility to claim FTP benefits under
Para 8.3. Not only that, but as per their own Affidavit
dated 23.05.2011, NPL was to mandatorily pass on the
benefits accrued under the MPP 2009 to the PSPCL.
17. Aggrieved from the reaffirmation of the findings by the
State Commission in Second Order of Commission, the
NPL again moved APTEL in Appeal No. 47 of 2015. It
asserted that at the time of bidding, deemed export
benefits were not only in force but also factored into the
financial modelling and tariff computation. Also, that
the said benefits were not withdrawn until the Public
Notices of April 2011 on behalf of DGFT, which
postdated the bid submission and execution of the PPA.
Furthermore, relying on the DGFT’s Policy Circular No.
39 of 2000 and the minutes of the PIC meeting dated
15.03.2011, it asserted that it had a legitimate
expectation that deemed export benefits under Para 8.3
of the FTP would be available. Accordingly, NPL
contended that the sudden withdrawal of the said
benefits arguably resulted in material escalation of
project costs and thereby fell within the “Change of
Law” clause of the PPA.
Civil Appeal No. 8694 of 2017 Page 8 of 60
18. On the other hand, PSPCL, challenging the above
contentions of the NPL, submitted that the benefits
under FTP Para 8.3 were never intended for immovable
infrastructure like thermal power plants and that the
FTP, by its very nature, was framed to promote exports
of manufactured goods and, accordingly, extended
benefits to goods that were exported or supplied
against foreign exchange earnings or to specified
projects under International Competitive Bidding
(hereinafter, “ICB”). Since a thermal power plant
constructed in-situ did not meet the definitional
threshold of “goods” or “manufacture” under the FTP or
law(s) on central excise, therefore, NPL’s reliance on
deemed export provisions was misplaced. PSPCL
further contended that the DGFT circulars did not
carry the force of law and any withdrawal of benefits
thereunder did not amount to legislative change
warranting relief under Article 13 of the PPA.
19. The APTEL referred to the definitions of the terms
“manufacture,” “manufactured goods” and “deemed
exports” under the FTP as well as the Central Excise
Act, 1944 (hereinafter, “CEA 1944”) and observed that
the FTP was expressly designed to incentivize domestic
production of movable goods for export or deemed
export and the concept of “goods” under the statute
denoted a tangible and movable property, subject to
Civil Appeal No. 8694 of 2017 Page 9 of 60
classification under the Customs Tariff. Therefore, a
generating station, as in the instant case, comprising of
turbines, boilers, auxiliaries and associated civil works,
was nevertheless an integrated, immovable asset
assembled on-site and did not, as a whole, constitute a
manufactured good capable of being exported under
the FTP. An attempt to sever individual components to
obtain the relief of deemed export is inconsistent with
the scheme of the statute, requiring the final product
shipped or deemed to be shipped to a buyer outside the
jurisdiction of India. Observing that the NPL’s reliance
on Para 8.3 was based on misconstrued interpretation
of the letter as well as the spirit of the regime, it held
that said fiscal incentives were inherently inapplicable
to an in-situ coal-based thermal power plant.
20. To examine whether the Public Notices dated
27.04.2011 and 28.04.2011 constituted a “Change in
Law” under Article 13 of the PPA, APTEL while perusing
the language of Article 13 clarified that Article 13.1.1(ii)
extended to “any change in law” affecting “taxes,
duties, cesses, levies, fees and charges” which altered
the cost to the seller of performing its obligations. The
NPL had contended that withdrawal of deemed export
benefits, though effected by said Public Notices rather
than a parliamentary enactment, was indisputably a
change in the law or law-making process, and that the
Civil Appeal No. 8694 of 2017 Page 10 of 60
resulting increase in capital cost which engaged the
“Change in Law” provision was rejected by APTEL
observing that the said clause had only envisioned a
legislation and/or a statutory enactment in form of a
regulation by a competent authority. Therefore, the
said Public Notices were merely administrative policy
instruments, not meeting the threshold of “Change in
Law”. It further opined that while the said Notices
might have affected the cost of NPL, the remedy doesn’t
lie as a contractual relief under the PPA, but judicial
review of the said administrative action.
21. Reviewing the satisfaction of the procedural thresholds
by NPL under Article 13 of the PPA, namely, timely
notice for the alleged “Change in Law” event, and
quantification of the impact on tariff owing to the said
event, APTEL observed that while NPL reserved its right
vide the Affidavit dated 23.05.2011, it never pursued
any reference to confirmation of the eligibility of said
benefits under the FTP, either by the Central
Government or by DGFT. Such a belated invocation of
Article 13 of the PPA, without a binding interpretation,
would ascertain that NPL failed to discharge the onus
to demonstrate that a “Change in Law” event had
occurred. Furthermore, it is to be considered that
neither the claim for additional cost was substantiated
nor PPA envisaged restoration of benefits.
Civil Appeal No. 8694 of 2017 Page 11 of 60
22. Apparently being disconsolate from the concurrent
findings against them, NPL moved the Civil Appeal No.
8694 of 2017 before this Court. NPL has reiterated its
grievances.
23. Primarily, NPL has asserted that APTEL erred in
holding that the deemed export benefits under Para 8.3
of the FTP were never available to a coal-based thermal
power plant assembled in-situ. The grounds, as raised
in the instant Civil Appeal plead that both the statutory
text and DGFT circulars envisaged relief on individual
capital-goods components, which collectively form the
“goods” supplied to the project under ICB. It further
submits that the APTEL’s narrow reading of
“manufactured goods” contravenes the plain language
of the FTP and the FTP Act 1992, which defines
“deemed exports” by reference to supply to specified
end-users rather than physical shipment of entire
power stations abroad.
24. It went on to further contend that APTEL misconstrued
the “Change in Law” clause by restricting its scope to
parliamentary enactments and delegated legislation.
The grounds elaborate that Article 13.1.1(ii) expressly
extends to “any change in any law,” a phrase wide
enough to include executive notifications issued under
statutory authority, which alter duties, levies or
Civil Appeal No. 8694 of 2017 Page 12 of 60
benefits. Moreover, the Public Notice dated 27.04.2011
and 28.04.2011, issued pursuant to powers under the
FTP Act 1992, are thus argued to be legislative in
character and binding, triggering contractual relief.
25. Additionally, NPL avers that Impugned Judgment
overlooked its legitimate expectation, cultivated by
DGFT practice and minutes of the PIC Meeting dated
15.03.2011, that deemed export benefits under Para
8.3 of the FTP would subsist until formally rescinded.
By refusing to quantify loss on the basis of
contemporaneous tariff models and the record of actual
procurement, the State Commission is also said to have
abdicated its duty to enforce the economic equilibrium
principle fundamental to Article 13. It also faults the
APTEL’s finding on procedural non-compliance,
pointing out that timely notice was given and that the
quantification of incremental costs, derived from
pre-bid financial schedules, was neither speculative nor
premature.
26. Also, adopting their contentions before the State
Commission and APTEL, NPL has put forth that while
formulating its bid, it had factored in two critical
streams of fiscal incentives available under distinct
schemes: (i) the Mega Power Policy, which promised
concessional customs duty and full exemption from
excise duties for thermal power projects exceeding
Civil Appeal No. 8694 of 2017 Page 13 of 60
1,000 Mega Watt; and (ii) the benefits under Para 8.3 of
the FTP were applicable to deemed exports, including
Advance Authorization, Deemed Export Drawback, and
exemption from Terminal Excise Duty on procurement
of domestically manufactured capital goods. While the
former pertained specifically to recognized MPPs, the
latter applied to non-Mega Projects executing contracts
under ICB. As on the bid date, the Project did not have
formal MPP status, and hence, the bid was premised on
the availability of benefits under the FTP. Concluding,
NPL, relying on the maxim contemporanea expositio,
referred to the benefits granted to others, allegedly
similarly placed Projects and contended that
contemporary interpretation should be adopted.
27. In its Counter Affidavit dated 12.09.2017, PSPCL
comprehensively refutes NPL’s claim that the
withdrawal of FTP Para 8.3 benefits constitutes a
“Change in Law” event warranting contractual
compensation. PSPCL first underscores that the FTP
incentive scheme was designed exclusively for “goods”,
being tangible, movable items, as classifiable under the
Customs Tariff Schedule, and not for immovable assets
such as power plants. Referring to the legislative
history of the FTP and definitions under the CEA 1944,
which repeatedly distinguish between supply of goods
for export and installation of infrastructure projects on-
Civil Appeal No. 8694 of 2017 Page 14 of 60
site, it sought to demonstrate that policy makers never
contemplated deemed export benefits for entire power
stations. It further emphasized that any interpretation
extending relief to generating assets would render
incoherent the statutory regime of export-linked
incentives.
28. Supplementing the aforesaid contentions, PSPCL
asserts that NPL’s invocation of Article 13 is both
contractually and procedurally flawed, stressing that
the PPA draws a clear line between benefits under the
MPP and those under the FTP, and that NPL’s election
to opt for concessions under the MPP 2009, confirmed
by its own Affidavit dated 23.05.2011, precludes a
second bite at the cherry. The Counter Affidavit
additionally characterizes NPL’s protest reservation as
mere lip service, asserting that no synchronous
decision or order by the DGFT had ever recognized
NPL’s eligibility to benefits under Para 8.3 of the FTP.
29. On the “Change in Law” issue, PSPCL argues that only
statutory enactments or delegated legislation under the
FTP Act 1992 qualify, and that administrative notices,
lacking the force of regulation, cannot be contractual
triggers. Finally, PSPCL submits that NPL’s cost-impact
calculations are hypothetical, relying on benefit rates
that were never certified by DGFT, and that benefits, if
Civil Appeal No. 8694 of 2017 Page 15 of 60
any, must be sought through statutory appeals rather
than by recourse to the PPA’s “Change in Law” clause.
30. In its Rejoinder dated 15.11.2017, NPL insists that the
Counter Affidavit dated 12.09.2017 misconceives both
the factual matrix and the legal contours of the
“Change in Law” provision. It reiterates that the
statutory framework of the FTP contemplates deemed
export treatment for capital goods supplied under ICB,
irrespective of physical export, and that numerous
circulars by DGFT and meetings of PIC had long
signalled such availability. The Rejoinder emphasizes
that the PIC meeting dated 15.03.2011 and the Public
Notices dated 27.04.2011 and 28.04.2011 are
legislative in character, having been issued under
rule-making powers conferred by the Parliament, and
thus squarely fall within the ambit of Article 13.
31. Addressing PSPCL’s argument on estoppel, it asserts
that its Affidavit dated 23.05.2011 was executed under
protest and duress, simply to obtain MPP status, and
cannot be construed as a waiver of separate FTP
entitlements, further contending that it had repeatedly
sought clarification from DGFT, within the period
between bid submission and execution of the PPA, but
was left in regulatory limbo until April 2011. Regarding
quantification, NPL has provided detailed schedules
showing incremental capital cost computed at the exact
Civil Appeal No. 8694 of 2017 Page 16 of 60
FTP rates in force on the cut-off date, thereby
demonstrating a concrete, non-speculative loss.
32. The Rejoinder dated 15.11.2017 also challenges
PSPCL’s attempt to assert a narrow interpretation of
“law”, arguing that executive notifications issued under
statutory authority are binding legal instruments and
that contractual remedies for their withdrawal are
expressly provided in Article 13. Concluding, it also
urged that the sanctity of competitive bidding and the
doctrine of equitable adjustment demand that PSPCL
bear the financial burden of a post-bid policy reversal
for which NPL could not have planned.
33. Through detailed references, as raised by all the Senior
Advocates before us, we have been able to peruse all
the submissions at length, including all the material on
record through their assistance, inclusive of the
Impugned Judgment.
34. We shall first deal with the issue as to whether the
notifications by Directorate General of Foreign Trade
and Press Release of a Cabinet Decision pertaining to
change of threshold so-deemed export benefits would
constitute a “Change in Law” under the PPA.
35. Before we delve into the submission by the parties to
this effect and the analysis thereof, it is critical to refer
Civil Appeal No. 8694 of 2017 Page 17 of 60
the PPA as executed by the parties, especially Article 13
of the PPA, which reads as follows:
“ARTICLE 13: CHANGE IN LAW
13.1 Definitions
In this Article 13, the following terms shall have
the following meanings:
13.1.1 “Change in Law” means the
occurrence of any of the following events
after the date, which is seven (7) days prior
to the Bid Deadline:
(i) the enactment, bringing into effect,
adoption, promulgation, amendment,
modification or repeal, of any Law or
(ii) a change in interpretation of any
Law by a Competent Court of law,
tribunal or Indian Governmental
Instrumentality provided such Court of
law, tribunal or Indian Governmental
Instrumentality is final authority under
law for such interpretation or (iii)
change in any consents, approvals or
licenses available or obtained for the
Project, otherwise than for default of
the Seller, which results in any change
in any cost of or revenue from the
business of selling electricity by the
Seller to the Procurer under the terms
of this Agreement or (iv) any change in
the (a) Declared Price of Land for the
Project or (b) the cost of
implementation of the resettlement
and rehabilitation package of the land
for the Project mentioned in the RfP or
(c) the cost of implementing
Environmental Management Plan for
the Power Station (d) Deleted
but shall not include (i) any change in
any withholding tax on income or
dividends distributed to the
shareholders of the Seller, or (ii)
change in respect of UI Charges orCivil Appeal No. 8694 of 2017 Page 18 of 60
frequency intervals by an Appropriate
Commission.
13.1.2 ‘Competent Court’ means:
The Supreme Court or any High Court
or any tribunal or any similar judicial
or quasi-judicial body in India that has
jurisdiction to adjudicate upon issues
relating to the Project.
13.2 Application and Principles for
computing impact of Change in Law
While determining the consequence of Change in
Law under this Article 13, the Parties shall have
due regard to the principle that the purpose of
compensating the Party affected by such Change
in Law, is to restore through Monthly Tariff
payments, to the extent contemplated in this
Article 13, the affected Party to the same economic
position as if such Change in Law has not
occurred.
a) Construction Period
As a result of any Change in Law, the impact
of increase/decrease of Capital Cost of the
Project in the Tariff shall be governed by the
formula given below:
For every cumulative increase/
decrease of each Rupees
16,50,00,000/- (Rupees Sixteen
crore fifty lakhs) in the Capital Cost
over the term of this Agreement, the
increase/decrease in Non Escalable
Capacity Charges shall be an amount
equal to 0.267% (percentage zero
point two six seven) of the Non
Escalable Capacity Charges. Provided
that the Seller provides to the Procurer
documentary proof of such increase/
decrease in Capital Cost for
establishing the impact of such
Change in Law. Jn case of Dispute,
Article 17 shall apply.
It is clarified that the above mentioned
compensation shall be payable to
either Party, only with effect from the
Civil Appeal No. 8694 of 2017 Page 19 of 60
date on which the total
increase/decrease exceeds amount of
Rupees 16,50,00,000/- (Rupees
Sixteen crore fifty lakhs).
b) Operation Period
As a result of Change in Law, the
compensation for any
increase/decrease in revenues or cost
to the Seller shall be determined and
effective from such date, as decided
by the Appropriate Commission whose
decision shall be final and binding on
both the Parties, subject to rights of
appeal provided under applicable
Law.
Provided that the above mentioned
compensation shall be payable only if
and for increase/ decrease in
revenues or cost to the Seller is in
excess of an amount equivalent to 1%
of the Letter of Credit in aggregate for
a Contract Year.
13.3 Notification of Change in Law
13.3.1 If the Seller is affected by a Change in
Law in accordance with Article 13.2
and wishes to claim a Change in Law
under this Article, it shall give notice to
the Procurer of such Change in Law as
soon as reasonably practicable after
becoming aware of the same or should
reasonably have known of the Change
in Law.
13.3.2 Notwithstanding Article 13.3.1, the
Seller shall be obliged to serve a notice
to the Procurer under this Article
13.3.2 if it is beneficially affected by a
Change in Law. Without prejudice to
the factor of materiality or other
provisions contained in this
Agreement, the obligation to inform the
Procurer contained herein shall be
material. Provided that in case the
Seller has not provided such notice,
Civil Appeal No. 8694 of 2017 Page 20 of 60
the Procurer shall have the right to
issue such notice to the Seller.
13.3.3 Any notice served pursuant to this
Article 13.3.2 shall provide, amongst
other things, precise details of:
(a) the Change in Law; and
(b) the effects on the Seller of the
matters referred to in Article 13.2.
13.4 Tariff Adjustment Payment on account
of Change in Law
13.4.1 Subject to Article 13.2, the adjustment
in Monthly Tariff Payment shall be
effective from:
(i) the date of adoption, promulgation,
amendment re-enactment or repeal of
the Law or Change in Law; or
(ii) the date of order/judgment of the
Competent Court or tribunal or Indian
Governmental Instrumentality, if the
Change in Law is on account of a
change in interpretation of Law.
13.4.2 The payment for Changes in Law
shall be through Supplementary Bill as
mentioned in Article 11.8. However, in
case of any change in Tariff by reason
of Change in Law, as determined in
accordance with this Agreement, the
Monthly Invoice to be raised by the
Seller after such change in Tariff shall
appropriately reflect the changed
Tariff.”
36. A contention is raised on behalf of the learned Senior
Advocates for the Appellants that the Request for
Proposal and the contractual framework between the
parties as a whole clearly set a cut-off date for “Change
in Law” under the Article 13 of the PPA and required
them to deem all the prevailing laws, regulations, and
Civil Appeal No. 8694 of 2017 Page 21 of 60
their interpretations thereof to have been factored in
the bidding process and the price thereof. It is
accordingly contended that “law” included not only the
statutory texts from the wisdom of the legislature but
also any such authoritative interpretations of the law
by an “Indian Government Instrumentality”, which they
press DGFT to be one.
37. Moreover, arguing that similar benefits were given
under FTP to MPP and non-MPP projects and to
substantiate, reliance was placed on equivalent
benefits being given to 144 other projects, implying
settled nature of law. Alternatively, it is also argued
that this interpretation was altered through the PIC
dated 15.03.2011, and subsequently, led to
withdrawing the benefits under Para 8.3(a) and (b) of
the FTP for non-MPP altogether. Such an act would,
the Appellants contend, constitute “Change in Law”,
owing to the modifications to the existing entitlements.
38. Assailing the orders of the State Commission as well as
the APTEL, it is also pressed that those forums
erroneously only dealt with whether the Appellants
satisfied the conditions under the FTP as opposed to
the legality as to whether the said benefits were
available as on the cut-off date, thereby committing of a
jurisdictional error on their part by expanding the
scope of the remand, being in contradiction to the law
Civil Appeal No. 8694 of 2017 Page 22 of 60
laid down in Shivshankara and Another v. H.P.
Vedavyasa Char1. Relying on the decision of this
Court in Haryana Power Purchase Centre v. Sasan
Power Limited and Others2, it is further argued that
the best material to establish that whether a project
was exempted from the concerned duties as on the cut-
off would be instances of other similarly placed project
where goods were also treated to be exempt under the
instant FTP.
39. On the other hand, the Respondents had relied on
decision of this Court in GMR Warora Energy Limited
v. Central Electricity Regulatory Commission
(CERC) and Others3 to substantiate their claim for
“Change in Law” through withdrawal of deemed export
benefits through circulars of Ministry of Commerce and
Industry as well as the Notification dated 28.12.2011.
This contention is also rebutted by the Appellants
claiming that the same is not applicable in the present
case for having a varied factual matrix.
40. Whether the Press Release of Cabinet Decision
pertaining to change of threshold of so-deemed export
benefits constitutes a “Change in Law” under the PPA,
an issue-at-hand, has been substantively dealt as part
of decision of this Court in Nabha Power Limited and
1 (2023) 13 SCC 1
2 (2024) 1 SCC 247
3 (2023) 10 SCC 401
Civil Appeal No. 8694 of 2017 Page 23 of 60
Another v. Punjab State Power Corporation Limited
and Another4 wherein the question before this Court,
arising from the same PPA and an equivalent dispute,
was the juxtaposition of the MPP and the Press Release
dated 01.10.2009. Therein, the 3-Judge Bench of this
Court went on to observe that the fulcrum of the claim
of the Appellant therein is anchored in the assertion
that the Press Release dated 01.10.2009 was not
merely a policy statement but a clear indication of an
imminent shift in the regime of law governing the field.
Appellant therein also claimed the said Press Release
swayed its bid dated 09.10.2009 in terms of the
incorporation of the deemed benefits and thereby
created a legitimate expectation that the proposed
exemptions would come into force, forming a vital part
of the risk calculus vis-à-vis structuring of its bid
amount. The Respondent therein went on to contend
that no “Change in Law” occurred until the publication
of Notification Nos. 91/2009-Cus and 92/2009-Cus
dated 11.12.2009 and 14.12.2009 respectively,
implying that no expectation raised by the Appellant
therein could be said to have been crystallised.
41. Answering the query, the Bench while placing reliance
on earlier decisions of this Court, observed that the
golden rule, as applicable on contractual interpretation,
4
(2025) 5 SCC 353
Civil Appeal No. 8694 of 2017 Page 24 of 60
mandates that the words should be given their ordinary
and grammatical meaning and should not depart from
the mandate to avoid either absurdity or repugnancy,
even the business efficacy test, for which the
jurisprudence was reiterated and outlined in Nabha
Power Limited (NPL) v. Punjab State Power
Corporation Limited (PSPCL) and Another5, cannot
override an express term. While analysing the PPA, this
Court elaborated that while Article 1.1 of the PPA
elaborated “law” to include statutes, regulations,
notifications, orders, and interpretations, the Article
13.1.1. defined “Change in Law” as an enactment,
amendment or repeal after 02.10.2009. Therefore,
contention of the Appellant therein that the Press
Release dated 01.10.2009 amounts to an “order” was
held to have failed, while also referring its meaning in
the Black’s Law Dictionary, which required a binding
command. However, such notifications only emerged on
11.12.2009 and 14.12.2009.
42. Dealing with the subsequent questions of law, it also
clarified that the contention of Appellant therein on
failure of the Respondent to issue a notice as per the
provisions of Article 13.3.1 and 13.3.2 would vitiate the
provisions is misplaced owing to the fact that the PPA
only obligates a seller, and not a buyer as was PSPCL
5
(2018) 11 SCC 508
Civil Appeal No. 8694 of 2017 Page 25 of 60
in the said case, to have notified in case the “Change in
Law” when it is beneficial to it. The Bench also rejected
the claims of the Appellant therein that the sub-clauses
pertaining to changes in interpretation, licenses, land
prices or rehabilitation costs are not applicable in the
present case. Furthermore, placing reliance on Babu
Verghese and Others v. Bar Council of Kerala and
Others6 as well as Section 21 of the General Clauses
Act, 1897, it held that CA 1962 required the concerned
notification to have been issued in a certain manner
and be duly published in the official gazette, and
reiterated that law, whether parliamentary or
subordinate, must be published to enable them to take
effect.
43. The Bench additionally clarified that the claim for
legitimate expectation or promissory estoppel arising
from the Press Release dated 01.10.2009 would not
survive as the Central Government was neither a party
to the PPA nor was the same subject to any judicially
enforceable promise and no order of any court gave the
said Press Release a legal force. Concluding, the 3-
Judge Bench, relying on numerous precedents,
confirmed that only duly promulgated notifications,
and not Press Releases or Communications, would
constitute as “Change in Law”. Accordingly, no “Change
6 (1999) 3 SCC 422
Civil Appeal No. 8694 of 2017 Page 26 of 60
in Law” had occurred until the Notifications dated
11.12.2009 and 14.12.2009, thereby implying that the
benefits would have been deemed to be accrued only
from the said dates.
44. Therefore, the aforesaid decision of 3-Judge Bench in
Nabha Power Limited (supra) squarely covers the
field of law in relation to the issue of determination of
“Change in Law” in the instant case and same is
answered accordingly, holding that the Press Release
dated 01.10.2009 would neither amount to “law” within
the meaning conceptualized in the PPA, as it would
only be the Notifications dated 11.12.2009 and
14.12.2009 that would have amounted to “law”, nor it
would thereby amount to “Change in Law” as argued by
Appellants in the instant Civil Appeals.
45. Having answered the issue pertaining to “Change in
Law” we shall now deal with the issue as to whether
deemed export benefits under Para 8.3 of the FTP were
legitimately available to the Appellants as on the bid
cut-off date. It is pertinent to also acknowledge that
this issue shall also determine the contention of
Appellants that withdrawal of deemed export benefits
by notifications of DGFT dated 28.12.2011 and
21.03.2012 collectively constitutes “Change in Law” as
per the PPA.
Civil Appeal No. 8694 of 2017 Page 27 of 60
46. It appears that the learned Senior Advocates appearing
for NPL before the APTEL and the learned counsel
appearing for TSPL therein had argued to the effect
that the conditions prescribed under the FTP have been
unambiguously satisfied. On the legal aspect, it was
submitted that the scheme of FTP clearly pertains to
“goods” and not to any “services”. Accordingly,
contending that the whole power plant falls within the
definition of “capital goods”, thereby eligible for the
deemed export benefits.
47. To substantiate the said claim, the counsels elaborated
that as Para 9.12 of the FTP, “capital goods”
encompasses any plant, machinery, equipment or
accessories required, either directly or indirectly, for
the production or rendering of services, including those
necessary for replacement, modernisation,
technological upgradation, and expansion, and also
extends to machinery for packaging, power generating
sets, instrumentations, and equipment(s) for various
specialized functions. Placing reliance on the Minutes
No. 01180 dated 15.04.2008 of the Norms Committee,
it was contended that a power project was indeed
recognised to fall within the ambit of “capital goods”,
reiterating that key components such as turbines and
generators used within a plant are an integral input,
enabling the project to be entitled to advanced
Civil Appeal No. 8694 of 2017 Page 28 of 60
authorization benefits, which, as further contented, are
akin to the duty drawback contemplated under Para
8.3(c) of the FTP.
48. It was further argued that the whole process of
developing a power plant constitute as “manufacture”
when placed in juxtaposition to the definition so
provided under Para 9.36 of the FTP as it adopts a
broader definition, including making, assembling,
fabricating, processing, and bringing new product into
existence. Such comprehensive scope, as contended,
would also cover activities of construction where the
imported and indigenous materials, such as the
boilers, turbines, and generators are assembled on-site,
resulting in a new, and functional power plant. This
was further contented to be in line with the clarification
issued by the DGFT on 05.12.2000, apparently stating
that assembly and commissioning at site to constitute
“manufactured in India” for the purpose of availing
deemed export benefits under the FTP. As the said
clarification was in force as on the bid date, the
Appellants met the criterion for “manufactured in
India”, thereby fulfilling both the critical conditions for
availing the aforesaid benefits.
49. Having failed on the said contentions before the APTEL,
it appears that the Appellants have moulded the
contentions before this Court to imply that the
Civil Appeal No. 8694 of 2017 Page 29 of 60
aforesaid were not the asserted case before the APTEL
and instead the APTEL had erred in determining the
entitlement of deemed export benefits under the FTP
based on the imports made after the grant of MPP
status and alleged policy changes as opposed to
assessing the position of the Appellants as it stood on
the cut-off date vis-à-vis the FTP.
50. It is now further argued that APTEL had erred in
concluding that the Appellants claimed entire plant as
“capital goods”, which is manifestly perverse and the
contention was confined to the discrete components as
supplied by both, the main contractor(s) and the sub-
contractor(s). It is contended that numerous
components were imported for the boiler, turbine, and
generators which were then claimed to be assembled
on-site into new products with distinct names,
characteristics, and functions, meeting the stipulations
under the FTP as these indigenous components, which
were procured for the power plant would qualify as
“goods” under the FTP as their importation was directly
linked to the MPP.
51. Moreover, the APTEL ought not to have invoked the
definition of “manufacture” under the CEA 1944, and
such a disregard of the broader ambit of definition
under Para 9.36 of the FTP, and the DGFT Circulars
dated 05.12.2000 and 15.04.2008 recognising on-site
Civil Appeal No. 8694 of 2017 Page 30 of 60
assembly, erection, and testing thereof as
“manufacture”. To support this, reliance is placed on
decisions of this Court in Vadilal Chemicals Ltd. v.
State of A.P. and Others7, MSCO. Pvt. Ltd. v. Union
of India and Others8, Trutuf Safety Glass
Industries v. Commissioner of Sales Tax, U.P.9 and
P.C. Cheriyan v. Mst. Barfi Devi10. APTEL could not
have also observed the clarifications issued by the
DGFT to be an incorrect interpretation of the FTP.
52. It is subsequently raised that all the goods were
supplied by contractors is also acknowledged by the
APTEL vide Impugned Judgment in Para 76(d). For
this, it is contended that such importation would imply
to squarely fall within the definition of “eligible
supplier” under Para 8.2(f) of the FTP for the said goods
are said to be procured from domestic manufacturers
supplying against an process of ICB. It is pressed into
service on part of the Appellants that on the mandate
of ICB as per Para 8.4.4(iv) of the FTP, APTEL further
erred in adopting a restrictive interpretation and the
mandate was complied with at the stage of Independent
Power Producer stage in light of the DGFT Clarification
dated 14.08.2008. Subsequent arrangements made for
stage of Engineering and Procurement, and
7 (2005) 6 SCC 292
8 (1985) 1 SCC 51
9 (2007) 7 SCC 242
10 (1980) 2 SCC 461
Civil Appeal No. 8694 of 2017 Page 31 of 60
construction through sub-contracts does not dilute the
aforesaid compliance.
53. Concluding, it is contended that the projects were duly
certified as MPP and a subsequent refusal to extend
such deemed export benefits would be in derogation of
the mandate of the FTP.
54. Alternatively, the Appellants have also argued that as
per a collective reference to the FTP and the MPP, if it is
to be held that they were not entitled to the deemed
export benefits under the FTP as MPP, owing to the
same eligibility conditions for a non-MPP under the
FTP, as on the cut-off date, they were equally entitled
as a non-MPP.
55. Countering the aforesaid contentions raised on behalf
of the Appellants, learned Senior Advocate on behalf of
the opposing Respondent(s), while vehemently
contesting the claims of the Appellants have reiterated
their successful claims before the APTEL.
56. Before we delve into the submissions moved by the
Appellants, it is pertinent to refer to Chapter 8 of the
FTP, which reads as follows:
“8.1 Deemed Exports
‘Deemed Exports’ refer to those transactions in
which goods supplied do not leave country, andCivil Appeal No. 8694 of 2017 Page 32 of 60
payment for such supplies is received either in
Indian rupees or in free foreign exchange.
8.2 Categories of Supply
Following categories of supply of goods by main /
sub-contractors shall be regarded as ‘Deemed
Exports’ under FTP, provided goods are
manufactured in India:
(a) Supply of goods against Advance
Authorisation / Advance Authorisation for
annual requirement / DFIA;
(b) Supply of goods to EOUs / STPs / EHTP
/ BTP;
(c) Supply of capital goods to EPCG
Authorisation holders;
(d) Supply of goods to projects financed by
multilateral or bilateral Agencies / Funds as
notified by Department of Economic Affairs
(DEA), MoF under International Competitive
Bidding (ICB) in accordance with
procedures of those Agencies / Funds,
where legal agreements provide for tender
evaluation without including customs duty;
Supply and installation of goods and
equipment (single responsibility of turnkey
contracts) to projects financed by
multilateral or bilateral Agencies / Funds as
notified by DEA, MoF under ICB in
accordance with procedures of those
Agencies / Funds, which bids may have
been invited and evaluated on the basis of
Delivered Duty Paid (DDP) prices for goods
manufactured abroad;
(e) Supply of capital goods, including in
unassembled / disassembled condition as
well as plants, machinery, accessories,
tools, dies and such goods which are used
for installation purposes till stage of
commercial production, and spares to extent
of 10% of FOR value to fertilizer plants;
Civil Appeal No. 8694 of 2017 Page 33 of 60
(f) Supply of goods to any project or purpose
in respect of which the MoF, by a
notification, permits import of such goods at
zero customs duty;
(g) Supply of goods to power projects and
refineries not covered in (f) above;
(h) Supply of marine freight containers by
100% EOU (Domestic freight containers-
manufacturers) provided said containers
are exported out of India within 6 months or
such further period as permitted by
customs;
(i) Supply to projects funded by UN
Agencies; and
(j) Supply of goods to nuclear power projects
through competitive bidding as opposed to
ICB.
Benefits of deemed exports shall be
available under paragraphs (d), (e), (f) and
(g) only if the supply is made under
procedure of ICB.
8.3 Benefits for Deemed Exports
Deemed exports shall be eligible for any / all of
following benefits in respect of manufacture and
supply of goods qualifying as deemed exports
subject to terms and conditions as in HBP v1:-
(a) Advance Authorisation / Advance
Authorisation for annual requirement /
DFIA.
(b) Deemed Export Drawback.
(c) Exemption from terminal excise duty
where supplies are made against ICB. In
other cases, refund of terminal excise duty
will be given. Exemption from TED shall
also be available for supplies made by an
Advance Authorisation holder to a
manufacturer holding another Advance
Authorization if such manufacturer, in turn,Civil Appeal No. 8694 of 2017 Page 34 of 60
supplies the product(s) to an ultimate
exporter.
Benefits to the Supplier
8.4.1 (i) In respect of supplies made against
Advance Authorisation / DFIA in terms
of paragraph 8.2(a) of FTP, supplier
shall be entitled to Advance
Authorisation / DFIA for intermediate
supplies.
(ii) If supplies are made against
Advance Release Order (ARO) or Back
to Back Letter of Credit issued against
Advance Authorisation / DFIA in terms
of paragraphs 4.1.11 and 4.1.12 of
FTP, suppliers shall be entitled to
benefits listed in paragraphs 8.3(b)
and (c) of FTP, wherever is applicable.
8.4.2 In respect of supply of goods to EOU /
EHTP / STP / BTP in terms of
paragraph 8.2(b) of FTP, supplier shall
be entitled to benefits listed in
paragraphs 8.3(a), (b) and (c) of FTP,
whichever is applicable.
8.4.3 In respect of supplies made under
paragraph 8.2(c) of FTP, supplier shall
be entitled to the benefits listed in
paragraphs 8.3(a), (b) and (c) of the
Policy, whichever is applicable.
8.4.4 (i) In respect of supplies made under
paragraphs 8.2(d), (f) and (g) of FTP,
supplier shall be entitled to benefits
listed in paragraphs 8.3(a), (b) and (c),
whichever is applicable.
(ii) In respect of supplies mentioned in
paragraph 8.2(d), supplies to projects
funded by such Agencies alone, as
may be notified by DEA, MoF, shall be
eligible for deemed export benefits. A
list of such Agencies / Funds is given
in Appendix 13 of HBP v1.
Civil Appeal No. 8694 of 2017 Page 35 of 60
(iii) Benefits of deemed exports under
para 8.2(f) of FTP shall be applicable in
respect of items, import of which is
allowed by DoR at zero customs duty,
subject to fulfillment of conditions
specified under Notification No.
21/2002-Customs dated 1.3.2002, as
amended from time to time.
(iv) Supply of Capital goods and
spares upto 10% of FOR value of
capital goods to power projects in
terms of paragraph 8.2(g), shall be
entitled for deemed export benefits
provided the ICB procedures have
been followed at Independent Power
Producer (IPP) / Engineering and
Procurement Contract (EPC) stage.
Benefit of deemed exports shall also
be available for renovation /
modernization of power plants.
Supplier shall be eligible for benefits
listed in paragraph 8.3(a) and (b) of
FTP, whichever is applicable.
However, supply of goods required for
setting up of any mega power projects
as specified in S.No. 400 of DoR
Notification No. 21/2002-Customs
dated 1.3.2002, as amended, shall be
eligible for deemed export benefits as
mentioned in paragraph 8.3(a), (b) and
(c) of FTP, whichever is applicable, if
such mega power project complies with
the threshold generation capacity
specified therein, in Customs
Notification.
(v) Supplies under paragraph 8.2(g) of
FTP to new refineries being set up
during Ninth Plan period and spilled
over to Tenth Plan period, shall be
entitled for deemed export benefits in
respect of goods mentioned in list 17
specified in S.No. 228 of Notification
No. 21/2002-Customs dated 1.3.2002,
Civil Appeal No. 8694 of 2017 Page 36 of 60
as amended from time to time.
Supplier shall be eligible for benefits
listed in paragraphs 8.3(a) and (b) of
FTP, whichever is applicable.
8.4.5 In respect of supplies made under
paragraph 8.2(e) of FTP, supplier shall
be eligible for benefits listed in
paragraph 8.3(a) and (b) of FTP,
whichever is applicable. Benefit of
deemed exports shall be available in
respect of supplies of capital goods
and spares to Fertilizer Plants which
are set up or expanded / revamped /
retrofitted / modernized during Ninth
Plan period. Benefit of deemed exports
shall also be available on supplies
made to Fertilizers Plants, which have
started in the 8th / 9th Plan periods
and spilled over to 10th Plan period.
8.4.6 Supplies of goods to projects funded by
UN Agencies covered under para 8.2(i)
of FTP are eligible for benefits listed in
paragraph 8.3(a) and (b) of FTP,
whichever is applicable.
8.4.7 In respect of supplies made to Nuclear
Power Projects under para 8.2(j) of
FTP, the supplier would be eligible for
benefits given in para 8.3(a), (b) and (c)
of FTP, whichever is applicable. Supply
of only those goods required for setting
up any Nuclear Power Poject specified
in list 43 at S.No. 401 of Notification
No. 21/2002-Customs dated 1.3.2002,
as amended from time to time, having
a capacity of 440MW or more as
certified by an officer not below rank of
Joint Secretary to Government of India
in Department of Atomic Energy, shall
be entitled for deemed exports benefits
in cases where procedure of
competitive bidding (and not ICB ) has
been followed.
Civil Appeal No. 8694 of 2017 Page 37 of 60
8.5 Eligibility for refund of terminal excise
duty / drawback
Supply of goods will be eligible for refund of
terminal excise duty in terms of para 8.3(c) of FTP,
provided recipient of goods does not avail
CENVAT credit / rebate on such goods. Similarly,
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 applicant. Such supplies will
however be eligible for deemed export drawback
on customs duty paid on inputs / components.
8.5.1 Simple interest @ 6% per annum will be
payable on delay in refund of
drawback and terminal excise duty
under deemed export scheme, if the
case is not settled within 30 days of
receipt of complete application (as in
paragraph 9.10.1 of HBP v1).
8.6.1 Supplies to be made by the main /
sub-contractor
In all cases of deemed exports,
supplies shall be made directly to
designated Projects / Agencies / Units
/ Advance Authorisation / EPCG
Authorisation holders. Sub-contractor
may, however, make supplies to main
contractor instead of supplying directly
to designated projects / Agencies.
Such supplies shall be eligible for
deemed export benefits as per
procedure laid down in paragraph 8.4
of HBP v1.
8.6.2 Supplies made by an Indian sub-
contractor of an Indian or foreign main
contractor directly to the designated
projects / Agencies, shall also be
eligible for deemed export benefits
provided sub-contractor is indicated
either originally or subsequently in the
Civil Appeal No. 8694 of 2017 Page 38 of 60
contract, and payment certificate is
issued by project authority in the name
of sub-contractor as in Appendix 22C
of HBP v1.”
The following definitions within FTP also ought to be
referred:
“9.12 ‘Capital Goods’ means any plant,
machinery, equipment or accessories
required for manufacture or production,
either directly or indirectly, of goods or for
rendering services, including those required
for replacement, modernisation,
technological upgradation or expansion. It
also includes packaging machinery and
equipment, refractories for initial lining,
refrigeration equipment, power generating
sets, machine tools, catalysts for initial
charge, equipment and instruments for
testing, research and development, quality
and pollution control. Capital goods may be
for use in manufacturing, mining,
agriculture, aquaculture, animal husbandry,
floriculture, horticulture, pisciculture,
poultry, sericulture and viticulture as well
as for use in services sector.
xxx xxx xxx
9.14 ‘Component’ means one of the parts of a sub-
assembly or assembly of which a
manufactured product is made up and into
which it may be resolved. A component
includes an accessory or attachment to
another component.
xxx xxx xxx
9.36 ‘Manufacture’ means to make, produce,
fabricate, assemble, process or bring into
existence, by hand or by machine, a new
product having a distinctive name,
character or use and shall include
Civil Appeal No. 8694 of 2017 Page 39 of 60
processes such as refrigeration, re-packing,
polishing, labelling, Re-conditioning repair,
remaking, refurbishing, testing, calibration,
re-engineering. Manufacture, for the
purpose of FTP, shall also include
agriculture, aquaculture, animal husbandry,
floriculture, horticulture, pisciculture,
poultry, sericulture, viticulture and mining.”
57. From a perusal of the FTP, pleadings as well as
submissions of the parties, as aforesaid, there are five
essential prerequisites that ought to be satisfied by the
Appellants in order to be eligible for the deemed export
benefit(s). The said pre-conditions can be enumerated
in the following manner:
(i) The claim for Deemed Export Benefits relates
exclusively to “goods” and is inapplicable to any
other thing which is not “goods”. Such goods,
though supplied, do not physically exit the
territorial boundaries of the country.
(ii) The goods to be supplied must be “manufactured
in India”.
(iii) There must be an act constituting “supply of
goods” to the power projects for the project to
claim Deemed Export Benefits.
(iv) The act of “supply of goods” is either by the main
contractor and/or the sub-contractor to the
concerned power project.
Civil Appeal No. 8694 of 2017 Page 40 of 60
(v) The supply is undertaken strictly in accordance
with the procedural framework prescribed under
ICB.
58. Now we would proceed to consider and deal with the
above culled out essential ingredients for being eligible
for claim of Deemed Export Benefits.
59. From the FTP, it is apparent that the foremost
prerequisite to avail the deemed export benefits is
limited to “goods”, the definition for which is absent
therein, despite there being an explicit reference to
“capital goods” and “consumer goods”. Accordingly, we
may refer to the following references to define “goods”.
Firstly, in Fifth edition of P. Ramanatha Aiyar’s
Advanced Law Lexicon, wherein, goods has been
defined as:
“‘GOODS’ means every kind of movable
property other than actionable claims and
money; and includes stocks and shares,
growing crops, grass and things attached,
to or forming part of the land which are
agreed to be severed before sale or under
the contract of sale. [Sale of Goods Act (3 of
1930), S. 2(7)]For the purposes of this clause, “goods”
includes any article material or substance
which is capable of being bought and sold
for a consideration and such goods shall be
deemed to be marketable. [Central Excise
Act (1 of 1944), S. 2, Expln. as inserted by
Finance Act (18 of 2008), S. 78]
Civil Appeal No. 8694 of 2017 Page 41 of 60
xxx xxx xxx
‘Goods’ means all kinds of movable
property other than actionable claims,
stocks, shares and securities, and includes
all materials, articles and commodities
including the goods (as goods or in some
other form), involved in the execution of a
works contract or those goods used or to be
used in the construction, fitting out,
improvement or repair of movable or
immovable property and also includes all
growing crops, grass and things attached to
or forming part of the land which are agreed
to be severed before sale or under the
contract of sale and also includes motor
spirit.”[A.P. General Sales Tax Act (6 of
1957), S. 2(1)(h) as cited in Tata
Consultancy Services v. State of A.P., (2005)
1 SCC 308, 316, para 7])
xxx xxx xxx
‘GOODS’ means all kinds of movable
property (other than newspaper, actionable
claims, stocks and shares and securities),
and includes, all materials, commodities,
and articles including the goods, as goods
or in some other form) involved in the
execution of a work-contract or, those goods
to be used in the fitting out improvement or
repair of moveable property and all growing
crops, grass or things, attached to, or
forming part of, the lands which are agreed
to be severed before sale or under the
contract of sale. [Karnataka Sales Tax Act
(25 of 1957), S. 2(m) and T.N. General Sales
Tax Act (1 of 1959), S. 2(j) as cited in Vikas
Sales Corpn v. Commr. of Commercial
Taxes, (1996) 4 SCC 433, 441-42, pp. 15,
16: AIR 1996 SC 2082]
‘GOODS’ means machinery, motor vehicles,
equipment, furniture, articles of stationary,
textiles raw materials, drugs, scientific
instruments, chemical, food grains, oil and
oil seeds or other commodity required for
Civil Appeal No. 8694 of 2017 Page 42 of 60
consumption, use or distribution by a
procurement entity in discharge of its public
duties’. [Karnataka Transparency in Public
Procurement Act (29 of 2000), S. 2(b) as
cited in State of Karnataka v. Fisheries
Welfare Co-operative Society Ltd., AIR 2012
Kar 132, para 2].”
Secondly, in Third Edition of Supreme Court Words
and Phrases by Surendra Malik and Sumit Malik,
“goods” are defined to be as:
“‘Goods’- Constitution of India – Sch. VII List
II Entries 53 & 54 and Arts. 366(12) & (29-
A)‘Goods’ may be tangible or intangible prop-
erty. It would become goods provided it has
the attributes thereof having regard to (a) its
utility; (b) capable of being bought and sold;
and (c) capable of being transmitted,
transferred, delivered, stored and
possessed. (Para 151)”
60. It is apparent from the aforesaid that in the common
parlance, the term “goods” denotes movable items and
shall exclude immovable items. To further elaborate,
this Court in Quality Steel Tubes (P) Ltd v. Collector
of Central Excise, U.P.11 went on to observe that for a
good to qualify as “excisable”, it must qualify as “goods”
and should also be able to satisfy the “marketability
test” which was established in Union of India and
Another v. Delhi Cloth and General Mills Co. Ltd.12
11 (1995) 2 SCC 372
12 1962 SCC OnLine SC 148
Civil Appeal No. 8694 of 2017 Page 43 of 60
and was reiterated in the subsequent decisions of this
Court in Collector of Central Excise, Baroda v.
Ambalal Sarabhai Enterprises (P) Ltd.13 and Union
Carbide India Limited v. Union of India and
Others14. Therefore, it stands settled that an
immovable property, especially a machinery embedded
to earth, as in the instant case, would fail the aforesaid
test.
61. It is also true that Captive Power Plants have been
recognized as “capital goods” within the scope of
subsequent FTP, but those importable products are
movable and cannot be equated to the Project Plant in
the instant case. The correct means to analyse and
determine expression “capital goods” would be subject
to the definition of the term “goods” especially when
Para 9.12 of the FTP only encompasses movable items.
It would not be possible within the given canvas to hold
that an embedded power plant of hundreds of Mega
Watts would be able to qualify as “capital goods” for
entitlement of the Appellants under the FTP for the
deemed export benefits.
62. The second prerequisite is derived from the opening
paragraph of Para 8.2 of the FTP makes it obligatory
that concerned goods as required to be supplied must
13 (1989) 4 SCC 112
14 (1986) 2 SCC 547
Civil Appeal No. 8694 of 2017 Page 44 of 60
be manufactured in India. Para 9.36 of the FTP goes on
to define “manufacture” as making, producing,
fabricating, assembling, processing, or otherwise
bringing into existence, by hand or machine, a new
product with a distinctive name, character, or use, and
goes on to include processes like refrigeration,
repacking, polishing, labelling, reconditioning,
repairing, remaking, refurbishing, testing, calibration,
and re-engineering, as well as activities like agriculture,
horticulture, floriculture, animal husbandry,
pisciculture, poultry, sericulture, viticulture, and
mining. Dealing further with “manufacture”, we may
refer to the Fifth edition of P. Ramanatha Aiyar’s
Advanced Law Lexicon wherein, the varied and relevant
connotations of the word have been elaborated as:
“‘MANUFACTURE’ implies a change, but
every change is not manufacture and yet
every change of an article is the result of
treatment labour and manipulation. But
something more is necessary and there
must be transformation; a new and
different article must emerge having a
distinctive name, character or use. [Words
and Phrases, Permanent Edition, Vol XXVI,
as cited in Union of India v. Ahmedabad
Electricity Co. Ltd., AIR 2004 SC 11, 16,
para 19]
Conversion of raw materials into a finished
product, e.g. converting iron ore into steel
plate.
Manufacture is: (1) The application, to
material, of labour or skill, whereby the
original article is changed to a new,
different, and useful article, provided theCivil Appeal No. 8694 of 2017 Page 45 of 60
process is of a kind popularly regarded as
manufacture, or (2) the product of such
process.
‘Whatever is made by human labour, either
directly or through the instrumentality of
machinery.’ (Abbott L. Dict.)
To constitute a manufacture, within the
customs duty acts, there must be a
transformation. Mere labour bestowed on
an article, even if the labour is applied
through machinery, will not make it a
manufacture, unless it has progressed so
far that a transformation ensues, and the
article becomes commercially known as
another and different article from that as
which it began its existence.
Every alteration in an article does not confer
on it a new character as a manufacture. To
constitute a new and different article and a
manufactured article, it must be so changed
as to have a positive and specific use in its
new state.
‘The process of making a thing by art.’
(Burrill)
The word ‘manufacture’ is a compound
word of Latin origin derived from the words
“manu,” by hand and “facere,” to do, to
make, to form; but the meaning is not
confined to that which is done by hand
alone, but by machinery as well. (In re
Tecopa Min, etc., Co., 110 Fed 120, 121.
See also 110 IC 788: 29 Cr LJ 756: 1928
Pat 506)
xxx xxx xxxEtymologically, ‘manufacture’ is a
compound word from Latin “manu” meaning
“hand” and “facere” which means “made”.
Thus, in its primary sense, ‘manufacturing’
is fashioning of a raw or wrought material
by manual or mechanical manipulation,
resulting in its transformation; a new and
different article must emerge having a
distinctive name, character or use. RaghbirCivil Appeal No. 8694 of 2017 Page 46 of 60
Chand Som Chand v. Excise & Taxn.
Officer, (1960) 11 STC 149, 164-5 (Punj).
Also see North Bengal Stores Ltd. v. Board
of Revenue, (1938-50) 1 STC 157, 163-4
(Cal); State of Bihar v. Chrestien Mica
Industries Ltd., (1956) 7 STC 626, 631 (Pat),
affirmed (1961) 12 STC 150 (SC); G.R.
Kulkarni v. The State, (1957) 8 STC 294
(MP); CIT v. Casino (Pvt.) Ltd., (1973) 91 ITR
289 (Ker)xxx xxx xxx
‘The word ‘Manufacture’,’ said ABBOTT,
C.J., in R. v. Wheeler, 2 B. & Ald. 349, has
been generally understood to denote, either
a thing made which is useful for its own
sake and vendible as such, as a medicine,
a stove, a telescope, and many others; or to
mean an engine or instrument, or some part
of an engine or instrument, to be employed
either in the making of some previously
known article, or in some other useful
purpose, as a stocking frame, or a steam
engine for raising water from mines; or, it
may, perhaps, extend also to a new process
to be carried on by known implements or
elements acting upon known substances,
and ultimately producing some other known
substance but producing it in a cheaper or
more expeditious manner, or of a better or
more useful kind. No mere philosophical or
abstract principle can answer to the word
‘Manufactures.’ Something of a corporeal
and substantial nature,— something that
can be made by man from the matters
subjected to his art and skill, or at the least
some new mode of employing practically his
art and skill, is required to satisfy the
word.” (See also Gibson v. Brand, 4 M. & G.
199)
xxx xxx xxx
The expression ‘manufacture’ is normally
related to movable articles and goods. It
cannot be employed to denote constructionCivil Appeal No. 8694 of 2017 Page 47 of 60
of a building or a dam or a bridge. [CIT v.
Ceo Tech Foundation and Construction,
(2000) 241 ITR 90 (Ker)]”
63. Even a 5-Judge Bench of this Court, in Delhi Cloth
and General Mills (supra), while dealing with
determination of excise duty on the Respondents
therein under the Central Excise and Salt Act, 1944
observed that:
“16. This consideration of the meaning of the
word ‘goods’ provides strong support for the
view that “manufacture” which is liable to
excise duty under the Central Excise and
Salt Act, 1944 must be the ‘bringing into
existence of a new substance known to the
market’. ‘But,’ says the learned counsel,
“look at the definition of ‘manufacture’ in
the definition clause of the Act and you will
find that ‘manufacture’ is defined thus:
‘Manufacture includes any process
incidental or ancillary to the completion of a
manufactured product.’ [Section 2(f)]. We are
unable to agree with the learned counsel
that by inserting this definition of the word
‘manufacture’ in Section 2(f) the legislature
intended to equate ‘processing’ to
‘manufacture’ and intended to make more
‘processing’ as distinct from ‘manufacture’
in the sense of bringing into existence of a
new substance known to the market, liable
to duty. The sole purpose of inserting this
definition is to make it clear that at certain
places in the Act the word ‘manufacture’
has been used to mean a process incidental
to the manufacture of the article. Thus in the
very item under which the excise duty is
claimed in these cases, we find the words;
‘in or in relation to the manufacture of which
any process is ordinarily carried on with the
aid of power’. The definition of
‘manufacture’ as in Section 2(f) puts it
beyond any possibility of controversy that ifCivil Appeal No. 8694 of 2017 Page 48 of 60
power is used for any of the numerous
processes that are required to turn the raw
material into a finished article known to the
market the clause will be applicable; and an
argument that power is not used in the
whole process of manufacture using the
word in its ordinary sense, will not be
available. It is only with this limited
purpose that the legislature, in our opinion,
inserted this definition of the word
‘manufacture’ in the definition section and
not with a view to make the mere
‘processing’ of goods as liable to excise
duty.”
64. While discussing the meaning of the word “production”,
a reference was made by this Court to the elaboration
of “manufacture” as well in India Cine Agencies v.
Commissioner of Income Tax, Madras15 in a dispute
involving entitlement of benefits under Sections 32-AB,
80-HH, 80-I of Income Tax Act, 1961 as:
“5. In Words and Phrases, 2nd Edn. by Justice
R.P. Sethi the expressions ‘produce’ and
‘production’ are described as under:
‘In Webster’s New International
Dictionary, the word ‘produce’ means
something that is brought forth either
naturally or as a result of effort and
work; a result produced. In Black’s Law
Dictionary, the meaning of the word
‘produce’ is to ‘bring into view or notice;
to bring to surface’. A reading of the
aforesaid dictionary meanings of the
word ‘produce’ does indicate that if a
living creature is brought forth, it can be
said that it is produced.
[See CIT v. Venkateswara Hatcheries (P)
Ltd. [(1999) 3 SCC 632] , CIT v. N.C.15 (2008) 17 SCC 385
Civil Appeal No. 8694 of 2017 Page 49 of 60
Budharaja and Co. [1994 Supp (1) SCC
280 : (1993) 204 ITR 412] ]
Production or produce.—The word
‘production’ or ‘produce’ when used in
juxtaposition with the word
‘manufacture’ takes in bringing into
existence new goods by a process,
which may or may not amount to
manufacture. It also takes in all the by-
products, intermediate products and
residual products, which emerge in the
course of manufacture of goods. The
expressions ‘manufacture’ and ‘produce’
are normally associated with movable
articles and goods, big and small but
they are never employed to denote the
construction activity of the nature
involved in the construction of a dam or
for that matter a bridge, a road and a
building. [See Moti Laminates (P)
Ltd. v. CCE [(1995) 3 SCC 23] .]’
6. In Advanced Law Lexicon, 3rd Edn. by P.
Ramanatha Aiyar, the expressions
‘production’ and ‘manufacture’ are
described as under:
‘ ‘Production’ with its grammatical
variations and cognate expressions;
includes—
(i) packing; labelling, re-labelling, of
containers,
(ii) re-packing from bulk packages to
retail packages, and
(iii) the adoption of any other method
to render the product marketable.
‘Production’ in relation to a feature film,
includes any of the activities in respect of
the making thereof. [Cine Workers and
Cinema Theatre Workers (Regulations of
Employment) Act (50 of 1981), Section
2(i).]
***
Civil Appeal No. 8694 of 2017 Page 50 of 60
The word ‘production’ may designate as
well a thing produced as the operation of
producing; (as) production of commodities
or the production of a witness.
***
‘Manufacture’ includes any art, process
or manner of producing, preparing or
making an article, and also any article
prepared or produced by manufacture.
[Patents and Designs Act (2 of 1911),
Section 2(10).]
***
‘Manufacture’ includes any process—
(i) incidental or ancillary to the
completion of a manufactured product;
and
(ii) which is specified in relation to any
goods in the section or Chapter Notes
of the First Schedule to the Central
Excise Tariff Act, 1985 (5 of 1986) as
amounting to manufacture, or, and the
word ‘manufacturer’ shall be
construed accordingly and shall
include not only a person who employs
hired labour in the production or
manufacture of excisable goods, but
also any person who engages in their
production or manufacture on his own
account;
(iii) which is specified in relation to any
goods by the Central Government, by
notification in the Official Gazette, as
amounting to manufacture. [Central
Excise Act (1 of 1944), Section 2(f)]’ ”
65. Placing reliance on this Court’s decision in
Commissioner of Income Tax, Orissa and Others v.
M/s N.C. Budharaja and Company and Others16,
16 1994 Supp (1) SCC 280
Civil Appeal No. 8694 of 2017 Page 51 of 60
High Courts, such as that of Kerala, in Commissioner
of Income-Tax v. Geo Tech Foundation &
Constructions17 have also proceeded to hold that while
“manufacture” and “produce” are, in the usual
understanding, associated with movable articles and
goods, the same can never be deemed to also include or
to denote an activity amounting to construction.
66. Similarly, in Moti Laminates Pvt. Ltd. and Others v.
Collector of Central Excise, Ahmedabad18, this
Court observed that excise duty can only be applied to
the produced goods which are usable, movable,
saleable, and marketable. Also from the aforementioned
decisions like the Union Carbide India (supra), Bhor
Industries Limited, Bombay v. Collector of Central
Excise, Bombay19, and Hindustan Polymers v.
Collector of Central Excise20, it was reiterated that
goods ought to be known in the market and should be
capable of being sold.
67. Therefore, in the light of the above, the instant case, as
projected and pressed before us by the Appellants,
would fall foul of the essentiality when Para 9.36 of the
FTP requires that the manufactured good should have
17 (2000) 241 ITR 90 : 1999 SCC OnLine Ker 341
18 (1995) 3 SCC 23
19 (1989) 1 SCC 602
20 (1989) 4 SCC 323
Civil Appeal No. 8694 of 2017 Page 52 of 60
been brought into existence with a distinctive name,
character, or use. Such a feasibility would be
impossible when it comes to the concerned power
plants in the instant set of Appeals.
68. The third essential criterion for availing the said
deemed export benefits is “supply of goods” to a power
plant, as is contemplated under Para 8.2(g) of the FTP.
However, from the original pleadings of the Appellants
before the APTEL, it is established that they had made
an unsuccessful attempt to argue that the whole power
plant under their concerned Project fell within the
ambit of definition of supply of “goods”. Contemplating
their contention on the basis that the power plant falls
within “capital goods”, it would neither be permissible
nor viable to supply a power plant to itself as per the
mandate of the FTP and especially, in the light of Para
8.2(g) of the FTP contemplating categorization of
“supply of goods” to power projects and refineries not
covered in Para 8.2(f) which, in turn, deals with supply
of goods to any project or purpose in respect of which
the Ministry of Finance, by a notification, permits
import of such goods at zero customs duty. Therefore,
we are inclined to accept the contentions raised on
behalf of PSPCL and observe this condition to remain
unfulfilled.
Civil Appeal No. 8694 of 2017 Page 53 of 60
69. The fourth foundational prerequisite to avail the
deemed export benefits, as stipulated through Para 8.2,
read with Para 8.6 of the FTP mandates that the supply
of goods must be effected either by the main contractor
or the sub-contractor to the concerned project. In the
present factual matrix an entitlement to the deemed
export benefits only accrue when the goods, as
manufactured by the main contractor, are supplied to
the Project, herein being either the NPL or TSPL, or in
the alternative, the goods are manufactured by the
sub-contractor and supplied directly to the project or
through the main contractor. However, it appears that
before the forums of law below, and even at the time of
bidding, the to-be then constructed Power Plant itself
was deemed as the concerned capital goods for the
deemed export benefits, implying that there was no
distinct supply of goods by either a main contractor or
a sub-contractor thereof. Rather, a claim to seek the
benefits in respect of the entire power plant was made.
Such a situation of suo moto acclaimed manufacturing
in the Project’s own right shall not stand the instant
test.
70. The fifth prerequisite for availing the aforementioned
benefits under the FTP is a strict adherence to the
necessity of procurement of goods through ICB, as
stipulated in the latter part of the Para 8.2 and Para
Civil Appeal No. 8694 of 2017 Page 54 of 60
8.4.4(iv) of the FTP. Herein, it is categorically made
mandatory that the supplies as contemplated under
clauses (d), (e), (f), and (g) of the Para 8.2 would qualify
for the deemed export benefits only if the same is so
effected through the mandate of ICB. Moreover, Para
8.4.4(iv) provides that the supply of capital goods and
permissible spare up to 10% of the Free on Rail value
to the concerned power projects under Para 8.2(g),
subject to the condition that ICB has been adopted
either at the stage of Independent Power Producer or
Engineering Procurement Contract. The said benefit
originally also extended to the MPPs, subject to the
capacity thresholds as prescribed under Department of
Revenue’s Notification No. 21/2002-Customs.
Therefore, it is an incorrect and misplaced contention
subsequently raised by the Appellants before this Court
that the proviso to Para 8.2 is applicable to all kinds of
projects therein and that Para 8.4.4(iv) is a special
provision and deals specifically with Para 8.2(g).
71. Moreover, by virtue of amendments dated 14.01.2010
and 08.02.2010 to the FTP, a limited relaxation was
carved out exclusively for the MPPs wherein the
mandate of ICB had been exempted if the required
quantum of power had been tied up through adopting
of Tariff-Based Competitive Bidding, or the project was
awarded in the said manner. Clearly, as on the
Civil Appeal No. 8694 of 2017 Page 55 of 60
concerned cut-off date, neither of the Appellants would
have been able to plead that Tariff-Based Competitive
Bidding was a permissible alternative under the FTP for
either of the aforesaid stages. It is submitted on behalf
of the Appellants that ICB was conducted at the
Independent Power Producer stage, in tune with the
mandate of Section 63 of the EA 2003 for selection of
the power developer, therefore, having sufficed the
condition under Para 8.4.4(iv) it was not required to
conduct ICB at the Engineering Procurement Contract
stage.
72. A perusal thereof, clarifies that the essence of deemed
export benefits lay in the supply of goods to power
projects, not in power procurement arrangements. A
collective and comprehensive reading of Para 8.2, Para
8.4.4(iv) and Para 8.6 of the FTP establishes that the
Independent Power Producer stage is in reference to the
main contractor vis-à-vis supply of goods to the
concerned project, while the Engineering Procurement
Contract stage concerns the supply by a sub-contractor
to the Engineering Procurement Contract contractor.
Undoubtedly, and admittedly, mandate of ICB may be
claimed, on behalf of the Appellants, to have been
followed during their bidding process leading to the
PPAs, but no evidence has been produced on record by
the Appellants to determine whether such a mandate
Civil Appeal No. 8694 of 2017 Page 56 of 60
i.e. ICB process was adopted by them for procurement
of goods concerned and/or to be supplied as per Para
8.4.4(iv) of the FTP, which mandates ICB either at the
stage of Independent Power Producer or Engineering
Procurement Contract when in relation to a “supply of
goods” as per Para 8.2(g) of the FTP. Reliance on Tariff-
Based Competitive Bidding by the Appellants for
selection of the power project developer cannot be
equated with the mandate of the ICB for supply of
goods and is, therefore, a misnomer and a misplaced
plea raised on their part.
73. Considering the above contentions as raised before us
albeit for the first time, the Appellants, have clearly
failed to establish the procurement of “supply of goods”
as per the mandate of ICB either at the stage of
Independent Power Producer or Engineering
Procurement Contract, owing to the fact that such
procurement of the components was done through
directly entering into contract(s) with their subsidiaries
or joint venture or related companies, we do not find
any reason to further deal with the contentions raised
by the Appellants vis-à-vis other prerequisites as all the
essential pre-conditions unless ticked would not render
them eligible for the benefit claimed.
Civil Appeal No. 8694 of 2017 Page 57 of 60
74. The instant issue is answered against the Appellants to
the effect that they were not entitled to the deemed
export benefits under Para 8.3 of the FTP.
75. Having answered in the negative as aforesaid with
regard to the entitlement of the Appellants for the
deemed export benefits under the FTP, we ought not
delve into the plea as to the alleged withdrawal of the
said benefits through notifications of the DGFT dated
28.12.2011 and 21.03.2012 collectively and whether
that would amount to a “Change in Law” as per Article
13 of the PPA.
76. However, while placing reliance on our discussion
above of the issue(s), the aforesaid notifications issued
through DGFT were mere clarificatory in nature. As a
matter of fact, no interpretation of law was undertaken
prior to the cut-off date to the effect that a developer
shall be able to import goods to be assembled into a
power plant and also claim the deemed export benefits
on those. Therefore, APTEL, while dealing with the said
issue in detail, and correctly so, concluded that the
aforesaid contended circulars to be merely clarificatory
and not as something which has either changed or
introduced something new, being allegedly oppressive
towards the Appellants.
Civil Appeal No. 8694 of 2017 Page 58 of 60
77. Hypothetically, even assuming the case of the
Appellants to the said effect to be good in law and that
notification(s) would indeed amount to a “Change in
Law”, it is merely an academic exercise without any
impact on the legal position of the Appellants. They
were, and still are not, entitled to any deemed export
benefits under the FTP for their inability to fulfil the
concerned prerequisites as discussed by us above.
78. Now, we shall proceed to consider the third issue in the
instant Civil Appeals, which is subject to positive
contemplation of the earlier issues as dealt by us and if
so, whether Appellants are entitled to restitutionary
relief in the form of compensation.
79. It is clear from the detailed analysis of the first and
second issues raised in the instant Civil Appeals that
the Appellants have not been able to establish those in
their favour and accordingly, there cannot arise any
question for compensation to the Appellants by the
PSPCL as a means of restitutionary relief.
80. The Appellants have failed to impress this Court with
their submissions in these Civil Appeals and we find no
ground to interfere with the Impugned Judgment and
order dated 04.07.2017 passed by the Appellate
Tribunal for Electricity, New Delhi.
Civil Appeal No. 8694 of 2017 Page 59 of 60
81. These Appeals are dismissed being devoid of merit.
82. There shall be no order as to costs.
83. Pending application(s), if any, also stand disposed of.
.…………….……………………..CJI.
[ B. R. GAVAI ]
.……..………..……………………..J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
AUGUST 19, 2025.
Civil Appeal No. 8694 of 2017 Page 60 of 60
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