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TMI Blog2024 (4) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... liability between the petitioner and respondent no. 2-KLL on the demerged business, including on the issues of the inter se liability on the imports in question, for which the bank guarantee was furnished. Equally there cannot be an exercise of jurisdiction to injunct the invocation of the bank guarantee, as it is a settled principle of law that the bank guarantee constitutes an independent contract between the bank and the party in whose favour the bank guarantee is furnished. An injunction restraining the invocation of the bank guarantee can be granted in appropriate proceedings dealing with such contractual issues. Such reliefs can be granted applying the well-settled principles which need to weigh with the Court in injuncting the invoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent no. 1 : Mr. Jitendra B. Mishra a/w. Mr. Ashutosh Mishra, Mr. Rupesh Dubey. P.C. 1. We have heard Mr. Kamat, learned senior counsel for the petitioner and Mr. Mishra, learned counsel for respondent no. 1. 2. This petition under Article 226 of the Constitution of India is filed praying for the following substantive reliefs : A. Issue a writ of mandamus or certiorari or any other order, writ or direction restraining respondent nos. 1 and 3, its officers and any one claiming through or under respondent no. 1 and 3 from invoking and encashing the Bank Guarantee bearing No: 120126IBGF00167 (annexed hereto as Exhibit B ) dated 30 March, 2012 for an amount of INR 80 crore, issued by the respondent no. 3 for and behalf of the petitioner in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it undertakes to submit a bank guarantee of Rs. 80 crore (Rs. 45 crore towards duty liability and Rs. 35 crores towards interest liability) till the CCEA/GOI approval is received and the matter is resolved. Pursuant to the above, the petitioner issued the bank guarantee dated 30 March, 2012 bearing guarantee no. 120126IBGF00167 for an amount of INR 80 crores, which was last amended on 3 April, 2023, thereby extending its expiry date to 20 March, 2024 and extending its claim expiry date 20 September, 2024. It was agreed that in case requisite approval is not granted by CCEA, RGPPL will pay duty and other charges as applicable for the goods imported by it. 5. It appears that subsequent thereto, the petitioner business in question was demerged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order manifest that the appellant has not raised this issue before the OA but first time, this issue has been raised before me. I find fresh issue needs to be discussed by the OA before any final conclusion. 8. In light of the above observations, I hold that the interest of justice would be served by setting aside the impugned order and remanding the matter back to the Original Authority with the direction to ascertain the facts as per the scheme of demerger sanctioned by the NCLAT and pass a Speaking Order including request of the appellant to redeem Bank Guarantee of Rs. 80 crore in favour of them. 10. Accordingly, the Order in Original No. 357/AC/NSKR/Contract Cell/2022-23 dated 24.3.2023 is set aside and the matter is remande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is difficult for a writ court to consider the issues on invocation of bank guarantee and to record a finding of fact in that regard inter se between the petitioner and KLL. 10. Be that as it may, insofar the present proceedings are concerned, it appears that the adjudication proceedings now stands remanded to the Original Authority/ Assistant Commissioner, who is seized of the matter in pursuance of the order passed by the Appellate Authority, and who is now called upon to decide on the remanded issues including on the issue of the party required to furnish the bank guarantee. In such circumstances, in our opinion, it would be appropriate that in this regard we keep open all contentions of the parties, to be urged before the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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