2019 (5) TMI 1589 - HC - Customs

Restraint from encashing the bank Guarantee -deemed exports - goods imported by PEL (steel plates) for supply to NTPC who agreed to pay the duties leviable on the said imports - HELD THAT - The learned counsel appearing for the respondents states that the said amount was paid by NTPC under protest and since the Export Obligation Discharge Certificate has not been provided, the bank guarantee ought not to be released. This Court finds the aforesaid contention unmerited. Concededly, the bank guarantee was submitted by PEL to secure the revenue to the extent of ₹8,15,00,000/-. As against the said bank guarantee, NTPC has paid a sum of ₹19,91,83,067/-, as quantified by the concerned authority. There is no justification for respondent no.1 now to continue to withhold the bank guarantee. The respondents cannot continue to withhold the bank guarantee after accepting the said amount of ₹19,91,83,067/- - respondent no.1 is directed to forthwith return the bank guarantee to NTPC - Petition disposed off.

Summary

Issues:
1. Whether the Commissioner of Customs can encash the bank guarantee furnished by the petitioner?
2. Dispute arising from an agreement between the petitioner and another party for a hydroelectric power project.
3. Import of goods for the project under the Mega Power Project Policy.
4. Replacement of bank guarantee due to project cancellation.
5. Payment of duties by the petitioner and release of the bank guarantee.

Analysis:
1. The petitioner sought relief to restrain the Commissioner of Customs from encashing the bank guarantee. The dispute stemmed from an agreement for a hydroelectric project, where certain goods were imported for deemed exports. The petitioner replaced the bank guarantee after the project's cancellation, and subsequently paid the duties claimed by the Customs Department.

2. The agreement between the petitioner and another party involved the supply of goods for a hydroelectric project in Uttarakhand. The goods imported were eligible for deemed exports, supported by a Project Authority Certificate issued by the petitioner. However, due to project cancellation, a dispute arose regarding the payment of duties for the imported goods.

3. Under the Mega Power Project Policy, benefits were available for the hydroelectric project, making certain goods eligible for deemed exports. The imported goods, steel plates, were subject to export obligations, secured by a bank guarantee. The cancellation of the project led to the non-utilization of the goods, resulting in a duty payment dispute.

4. Following negotiations, the petitioner replaced the bank guarantee initially submitted by the other party. Despite attempts to utilize the goods in another project or revive the original project, the duties amounting to a significant sum were paid by the petitioner. The Customs Department withheld the bank guarantee pending the Export Obligation Discharge Certificate.

5. The Court ruled in favor of the petitioner, directing the Commissioner of Customs to return the bank guarantee. The payment of duties by the petitioner, exceeding the amount secured by the bank guarantee, justified the release. The order emphasized the rights of all parties to contest liabilities and seek exemptions, without limiting their legal options.

This detailed analysis highlights the complexities of the case, focusing on the contractual obligations, duty payments, and the resolution regarding the bank guarantee in the context of the hydroelectric project dispute.