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of <h1>Bank guarantee encashment not duty; time bar inapplicable. Tribunal reinstates refund, overturns Commissioner decision.</h1> <h3>REVIVAL CLOTHING Versus COMMISSIONER OF CUSTOMS, CHENNAI</h3> REVIVAL CLOTHING Versus COMMISSIONER OF CUSTOMS, CHENNAI - 2008 (222) E.L.T. 56 (Tri. - Chennai) Issues:1. Refund claim time-barred2. Nature of amount realized through encashment of bank guarantees3. Applicability of time bar provisions of Section 27 of the Customs Act to refund claimAnalysis:Issue 1: Refund claim time-barredThe appellant imported raw materials under an advance licence but failed to discharge their export obligation within the appointed time. Customs authorities encashed bank guarantees towards the duty foregone. The appellant later obtained a certificate of fulfilment of export obligation from the DGFT and filed a refund claim. The Assistant Commissioner allowed the claim, but the Commissioner (Appeals) held it time-barred as it was beyond six months from the encashment dates. The appellant argued that the encashed amount was not duty, citing relevant precedents. The Tribunal agreed, emphasizing that the encashed amount did not constitute duty, relying on the Supreme Court's decision in Oswal Agro Mills and the Tribunal's decision in Lucas TVS Ltd. The Tribunal deemed the time bar provisions inapplicable to the refund claim, reinstating the original authority's decision and overturning the Commissioner (Appeals) ruling.Issue 2: Nature of amount realized through encashment of bank guaranteesThe Tribunal clarified that the amount realized by the department through encashment of bank guarantees cannot be considered as duty, aligning with the legal precedents set by the Supreme Court and the Tribunal. The Tribunal highlighted that the Revenue did not dispute the appellant's fulfilment of their export obligation, as confirmed by the DGFT's certificate. The Revenue's objections regarding the timing of producing the certificate and informing the department about awaiting a decision were deemed hyper-technical. The Tribunal emphasized that the refund sanctioned based on the DGFT's certificate should not be denied due to such trivial grounds, especially considering the legal precedents that establish the non-applicability of time bar provisions to the refund claim.Issue 3: Applicability of time bar provisions of Section 27 of the Customs Act to refund claimThe Tribunal concluded that the time bar provisions of Section 27 of the Customs Act cannot be enforced on the refund claim, given the specific circumstances of the case and the nature of the encashed amount. The Tribunal reinstated the original authority's decision to grant the refund and set aside the Commissioner (Appeals) ruling, ultimately allowing the appeal in favor of the appellant.In summary, the Tribunal held that the encashed amount did not constitute duty, rendering the time bar provisions inapplicable to the refund claim. The Tribunal reinstated the refund granted by the original authority, overturning the Commissioner (Appeals) decision.
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