2002 (9) TMI 141 - AT - Customs

Summary

Issues:
1. Maintainability of appeal and stay application against the Order-in-Appeal.
2. Nature of the impugned correspondence and assessment proceedings.
3. Validity of the Commissioner (Appeals) decision to dismiss the appeal and stay application.
4. Relief sought by the appellant regarding the encashed bank guarantee.
5. Comparison with the Bombay High Court decision on bank guarantee encashment.
6. Directions regarding the refund of the encashed amount and issuance of a new bank guarantee.

Issue 1: Maintainability of appeal and stay application against the Order-in-Appeal
The appeal was directed against the Order-in-Appeal passed by the Commissioner (Appeals), where the appeal and stay application were dismissed on grounds of non-maintainability. The Commissioner held that the impugned correspondence from the Deputy Commissioner was not a proceeding finalizing the assessment, leading to the dismissal of the appeal and stay application.

Issue 2: Nature of the impugned correspondence and assessment proceedings
The Deputy Commissioner's correspondence dated 19-6-2002 was deemed by the Commissioner (Appeals) as not a final assessment proceeding but merely a correspondence. However, the Tribunal disagreed, asserting that the impugned proceedings were indeed the final assessment for the period from June 2001 to May 2002, covering 46 Bills of Entry. This discrepancy led to the dismissal of the appeal and stay application.

Issue 3: Validity of the Commissioner (Appeals) decision
The Tribunal found that the Commissioner (Appeals) erred in dismissing the appeal and stay application based on the misconception that the impugned action was not a final assessment proceeding. The Tribunal set aside the Commissioner's order and deemed the appeal as maintainable.

Issue 4: Relief sought by the appellant regarding the encashed bank guarantee
The appellant sought to be restored to the original position before the Commissioner's order, considering the stay granted by the High Court regarding the encashment of the bank guarantee. The Tribunal acknowledged the appellant's entitlement to this relief.

Issue 5: Comparison with the Bombay High Court decision on bank guarantee encashment
The Tribunal referred to a Bombay High Court decision where improper encashment of a bank guarantee led to a refund to the assessee. Drawing parallels, the Tribunal directed the Revenue to refund the encashed amount to the appellant and instructed the appellant to provide a new bank guarantee for the same amount.

Issue 6: Directions regarding the refund of the encashed amount and issuance of a new bank guarantee
The Tribunal directed the Revenue to refund the encashed amount within two weeks and mandated the appellant to furnish a new bank guarantee within one week thereafter. Both parties were bound by the High Court's order for interim stay until the Commissioner (Appeals) made a final decision on the stay application.

In conclusion, the Tribunal set aside the Commissioner (Appeals) order, deemed the appeal maintainable, and provided directions for the refund of the encashed amount and issuance of a new bank guarantee.