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TMI Blog2004 (7) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... edure as prescribed under Section 27(3) of the Customs Act, 1962. 2.The facts are taken from the impugned order made by the Customs, Excise and Gold (Control) Appellate Tribunal, copy of which is produced on record at page 25 of the paper book. By the order dated 4-9-2002 [2002 (146) E.L.T. 414 (Tri. - Del.)], the Tribunal disposed of the appeal which was filed against the order-in-appeal passed by the Commissioner (Appeals). It is required to be noted that the Commissioner (Appeals) dismissed the appeal on the ground that the appeal was maintainable. By an order dated 31-5-2004/4-6-2002, the Commissioner of Customs adjudicated the show cause notices dated 19-12-2000 and 16-8-2001. The show cause notices were in relation to the valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals) dismissed the appeal as well as the stay application holding that the order impugned before him can be regarded to be only a correspondence and not an appealable order. In view of this, before the Appellate Tribunal, it was pointed out that a grave error has been committed by the Commissioner of Customs (Appeals) as it was not a mere correspondence but an order indicating finalisation of the assessment for the period from June, 2001 to May, 2002 covering 46 Bills of Entry. In the meanwhile, the bank guarantee was encashed to the tune of Rs. 12.77 crores on 2-9-2002. It may be noted that the Tribunal pointed out that if the proceedings impugned before the Commissioner of Customs (Appeals) was only a correspondence and not a proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner to come to this Court for obtaining such an order and this Court could have passed the order, if deemed fit. It is at this juncture that it is required to be noted that the assessee had also preferred a writ petition (the other writ petition being disposed of hereby) for such a relief, though not immediately after the order was made, but after about a period of four months. 7.We have perused the order passed by the Bombay High Court in the case of Mahindra Mahindra (supra). The Division Bench pointed out that the three months time which is given by the statute is requited to be respected and when the amount was secured, it could not be said that there was any emergency in encashing the bank guarantee. In the instant case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain status quo ante in view of the order made by the High Court earlier. Our attention was invited to the decision of the Supreme Court in the case of Oswal Agro Mills Ltd. v. Assistant Collector, Central Excise, Ludhiana, 1994 (70) E.L.T. 48 (S.C.). The Court considered the arguments with regard to Section 11B of the Central Excises and Salt Act, 1944 which is pari materia to Section 27 of the Customs Act. The court pointed out as under in Paragraph 10 thereof :- The question, therefore, is whether it"10. can be said that the furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the court is equivalent to payment of the amount of excise duty. In our view, the answer is in the negative. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot, therefore, be held to be paid to the Revenue. There is no question of its refund and Section 11B is not attracted." 10.Thus, it is clear that the amount of disputed duty, i.e., secured by the bank guarantee, therefore, cannot be held to be paid to the Revenue. There is no question of its refund and, therefore, Section 11B (Section 27 in this case) is not attracted. The Supreme Court in Para 11 of the said judgment directed as under :- "We reiterate our direction to the 1st and 2nd respondents forthwith, to re-pay to the State Bank of Patiala, Overseas Branch, Millar Ganj, Ludhiana, the amount of Rs. 1,18,00,000/- collected upon the bank guarantees within two weeks." 11.The Tribunal has used the word 'refund', but in fact it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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