2011 (6) TMI 328 - AT - Central Excise

Bank guarantee encashment requires duty liability determination; procedural fairness upheld.

The High Court held that encashment of a bank guarantee without determining duty liability was unjustified. The Commissioner(Appeals) ordered the refund ... Encashing bank guarantee - Respondent is a partnership firm engaged in purchasing, selling and dealing in all kinds of machinery, motor parts, cranes, dozers, old power plants, sick industrial units etc.- Held that:- Assessee are not manufacturers of any excisable goods and they do not hold any Central Excise registration, either under the provisions of Central Excise Act, 1944 or the Central Excise Rules. Their jurisdictional Range Superintendent, Central Excise, vide letter dt 5.9.03 directed them to obtain Central Excise registration and follow the proper procedure and pay Central Excise duty on the clearance of the goods from their factory. Instead of adjudging their duty liability by finally deciding the Show Cause Notices issued to them, a lot of energy and time is being wasted by Revenue on a frivolous issue of encashment of bank guarantee. Admittedly Revenue has shown undue haste in encashing bank guarantee, without first deciding the assessee's duty liability - The Commissioner (Appeals) has rightly observed that such encashment by Revenue was neither justified nor warranted and he has rightly directed the department to refund the amount in question to the respondent, who would execute a bank guarantee of the same amount so as to safeguard the Revenue's interest - Accordingly, Revenue's appeal is rejected. Issues:1. Whether encashment of bank guarantee without determining duty liability is justified.2. Validity of bank guarantee and refund of encashed amount.Analysis:1. The primary issue in this case revolves around the encashment of a bank guarantee by the Revenue without first determining the duty liability of the assessee. The respondent, a partnership firm, purchased assets from a liquidation auction and was directed by the Range Superintendent to obtain Central Excise registration and pay duty. The High Court directed the assessee to furnish a bank guarantee of Rs.5 lakhs and clear goods on payment of duty. Subsequently, a Show Cause Notice was issued demanding duty, and the bank guarantee was encashed by the Revenue before final adjudication. The Commissioner(Appeals) held that encashment without determining duty liability was unjustified and ordered the refund of the amount, subject to the assessee furnishing a new bank guarantee.2. The second issue pertains to the validity of the bank guarantee and the refund of the encashed amount. The Commissioner(Appeals) observed that the encashment was premature as no final duty liability had been determined against the assessee. He directed the department to refund the amount and instructed the assessee to provide a new bank guarantee for the same amount to safeguard the Revenue's interest. The Commissioner(Appeals) emphasized the importance of maintaining the status quo as per the High Court's order and extended the validity of the bank guarantee until the final adjudication of the pending cases. The Tribunal upheld the Commissioner(Appeals)'s decision, rejecting the Revenue's appeal.In conclusion, the judgment highlights the significance of determining duty liability before encashing a bank guarantee and stresses the need for procedural fairness in dealing with such matters. The Tribunal upheld the decision to refund the encashed amount and maintain the status quo until the final adjudication of the pending cases, emphasizing the importance of safeguarding the interests of both the assessee and the Revenue.