2007 (10) TMI 46 - AT - Customs

Refund of the amount realized by the Dept. through encashment of bank guarantees as appellant failed to produce certificate from DGFT Bank Guarantee cannot be treated as Custom Duty so refund cannot be denied being time-barred if DGFT certificate has been produced

Summary

Issues:
1. Refund claim time-barred
2. Nature of amount realized through encashment of bank guarantees
3. Applicability of time bar provisions of Section 27 of the Customs Act to refund claim

Analysis:

Issue 1: Refund claim time-barred
The appellant imported raw materials under an advance licence but failed to discharge their export obligation within the appointed time. Customs authorities encashed bank guarantees towards the duty foregone. The appellant later obtained a certificate of fulfilment of export obligation from the DGFT and filed a refund claim. The Assistant Commissioner allowed the claim, but the Commissioner (Appeals) held it time-barred as it was beyond six months from the encashment dates. The appellant argued that the encashed amount was not duty, citing relevant precedents. The Tribunal agreed, emphasizing that the encashed amount did not constitute duty, relying on the Supreme Court's decision in Oswal Agro Mills and the Tribunal's decision in Lucas TVS Ltd. The Tribunal deemed the time bar provisions inapplicable to the refund claim, reinstating the original authority's decision and overturning the Commissioner (Appeals) ruling.

Issue 2: Nature of amount realized through encashment of bank guarantees
The Tribunal clarified that the amount realized by the department through encashment of bank guarantees cannot be considered as duty, aligning with the legal precedents set by the Supreme Court and the Tribunal. The Tribunal highlighted that the Revenue did not dispute the appellant's fulfilment of their export obligation, as confirmed by the DGFT's certificate. The Revenue's objections regarding the timing of producing the certificate and informing the department about awaiting a decision were deemed hyper-technical. The Tribunal emphasized that the refund sanctioned based on the DGFT's certificate should not be denied due to such trivial grounds, especially considering the legal precedents that establish the non-applicability of time bar provisions to the refund claim.

Issue 3: Applicability of time bar provisions of Section 27 of the Customs Act to refund claim
The Tribunal concluded that the time bar provisions of Section 27 of the Customs Act cannot be enforced on the refund claim, given the specific circumstances of the case and the nature of the encashed amount. The Tribunal reinstated the original authority's decision to grant the refund and set aside the Commissioner (Appeals) ruling, ultimately allowing the appeal in favor of the appellant.

In summary, the Tribunal held that the encashed amount did not constitute duty, rendering the time bar provisions inapplicable to the refund claim. The Tribunal reinstated the refund granted by the original authority, overturning the Commissioner (Appeals) decision.