9911796707
TMI Blog2004 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... r Notification No. 110/95-Cus. dated 5-6-95 on executing the required Bond and bank guarantee; that the capital goods imported by them were installed in their factory and the export obligation which was to be completed by them 2000-01 was completed by 1996 itself; that they had submitted to the Customs Department documents evidencing fulfillment of export obligation; that the Department issued the show cause notices demanding proportionate duty for non-fulfillment of prorata export obligation; that they submitted their reply that the export obligation had been completed 100% in the first year itself; that however, the Customs Department encashed the bank guarantees in August, 2001; that meanwhile the Appellants had requested the licencing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed Excise duty is not equivalent to payment of the amount of Excise duty and that the Supreme Court has held that bank guarantee is given for the purpose of securing the Revenue in the event of Revenue succeeds in proceeding before the Court; that bank guarantee is the security for Revenue, that in the event the Revenue succeeds its dues will be recoverable, being backed by the guarantee of a bank. He also relied upon the decision of the Tribunal in the case of Pace Marketing Specialities Ltd. v. CCE, Ghaziabad - 2003(157) E.L.T. 36 (Tri.-Del.) wherein it has been held that the view taken by the authorities below that "time was to be computed from the date of encashment of bank guarantee for claiming the refund amount, in our view, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants they were realizing the import duty from the Appellants as the Appellants had already fulfilled the export obligation. The amount realized by the Revenue by encashing the bank guarantee is thus not duty. Consequently the provisions of Section 27 of the Customs Act providing time limit of 6 months for submission of refund claim will not be applicable as Section 27 deals with the refund of duty and interest only. This was the judgment of the Supreme Court in the case of Oswal Agro Mills Ltd. wherein it has been held by the Supreme Court that "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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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