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TMI Blog2017 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... nt fulfilled the export obligation, well within the time frame, provided under the EPCG Scheme, but also furnished all documents in that behalf - The delay with regard to the submissions of EODC, in our view, could not be attributed to respondent no.2, as requisite steps had been taken by it, immediately after, fulfilment of export obligation by furnishing other relevant documents, which would have demonstrated that the export obligation in point of fact stood fulfilled. As to the nature of the amount deposited in whichever form. If, the amount deposited, is, towards security, surely, once the Assessee succeeds, he is entitled to seek restitution. Restitution, in such like circumstances, is not covered by Section 27 of the Act. Appeal dismissed - decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... MA 597/2005); SCN dated 02.12.1997 (which is relatable to CMA 598/2005); and SCN 05.12.1997 (which is relatable to CMA 599/2005). 5.1.It appears, that after respondent no.2 had been given due opportunity, three separate orders - in - original of even date, i.e., 30.04.2003 were passed qua, the aforementioned SCNs. 5.2.It appears, that pending the adjudication of the said SCNs, the appellant invoked the three Bank Guarantees, furnished by respondent no.2, on 04.08.2001. The three Bank Guarantees - in - issue bear the following details: C.M.A.No. BG No. & Date Amount Encashed For Which Refund Sought (in Rs.) 597/2005 G/95-96/182 dated 01.12.1995 7,00,000 598/2005 G/95-96/62 dated 19.07.1995 4,43,000 599/2005 G/95-96/126 dated 19.09.1995 6,82,630 6.The record also shows that after respondent no.2 had filed the documents and/or, applications with JDGFT to obtain EODC from the JDGFT. Three separate applications were made, the details of which are as follows: C.M.A.No. Date on which EODC applied 597/2005 25.03.1999 598/2005 25.03.1999 599/2005 21.12.2000 6.1.Admittedly, EODC's were issued on the following dates: 02.04.2002 (relatable to CMA 597/2005); 07.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt Collector of Central Excise, Ludhiana, 1994 (70) E.L.T. 48 (S.C.). 8.5.It is, against this order, that the Revenue, as adverted to above, has perferred the present appeals. 9.Mr.Srinivas, who appears for the Revenue, submits that the order passed by the Tribunal, is erroneous for the following reasons: (i)That the Bank Guarantee was encashed towards the duty amount, as, at the relevant point in time, requisite documents had not been furnished, which would have entitled respondent no.2, to claim exemption under the aforementioned Notification, i.e., Notification No.110/95. (ii)The Tribunal erred in applying the judgment of the Supreme Court in the matter of Oswal Agro Mills Limited, in as much as, the ratio of the said judgment was not applicable to the facts of the instant case. 9.1. In support of his submissions, the learned counsel has relied upon a series of judgments, the details of which, are set forth hereafter: (i)ITW Signode India Ltd. Vs. Assistant Commissioner of Customs and Central Excise., Hyderabad, 2000 (122) E.L.T.651 (A.P.); (ii)Elecon Engineering Co. Ltd., Vs. Union of India, 2002 (146) E.L.T. 301 (Guj.); (iii)Daewoo Motors India Ltd. Vs. Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligation by furnishing other relevant documents, which would have demonstrated that the export obligation in point of fact stood fulfilled. 15.The narration of facts, set out above, would show that the appellant infact had also discharged the bond and/or cancelled the bond, once, documents evidencing export had been submitted by respondent no.2 in March, 1999. Therefore, it is not quite understood by us, as to why, the Bank Guarantees in issue, were invoked and encashed by the appellant, after the bond has been cancelled. 16.Be that as it may, the only explanation, perhaps, which is available, and that, which emerges from the record is, that, at the point in time, the Bank Guarantees were encashed, which was on 04.08.2001, in at least, two out of the three cases the EODC's were not furnished to Respondent No.2 for onward submission to the appellant. 17.The fact remains, as indicated above, that EODCs were thereafter submitted, upon being furnished and refund claims were lodged by respondent no.2 to retrieve, what was, in our view, money retained by the appellant, in the form of security. 18. Mr.Srinivas's argument that the Bank Guarantees were encashed towards payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vent the Revenue succeeds its dues will be recoverable, being backed by the guarantee of a bank. In the event, however, unlikely, of the bank refusing to honour its guarantee it would be necessary for the Revenue or, where the bank guarantee is in favour of the principal administrative officer of the Court, that officer to file a suit against the bank for the amount due upon the bank guarantee. The amount of the disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the Revenue. There is no question of its refund, and Section 11B is not attracted." (Emphasis is ours) 20.We must indicate that Mr.Srinivas, has submitted that the said judgment is not applicable, as the Bank Guarantees were furnished pursuant to an interim order. 20.1.According to us, the ratio of the judgment is that the purpose for which a Bank Guarantee is furnished, has to be examined keeping in mind the background facts and the reason, why it was furnished in the first place. If the Bank Guarantee is furnished, as in this case, in the form of a security, towards fulfilment of an obligation, then surely, provisions of Section 27 of the Act will not apply. That was exact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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