2008 (1) TMI 160

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....al rate of duty by enforcing the bank guarantee realised by the appellant on 03.09.2001 and refund claim was filed only on 01.06.2005, i.e., beyond the period of six months as stipulated in section 27 of the Customs Act, 1962? 2. Whether the Tribunal is right in not considering the legal issue that whether the respondent is entitled for refund when the respondent has not discharged the export obligation within the stipulated time? 2. The appeal is filed on the ground that the respondent had imported certain capital goods under EPCG scheme and cleared the same without payment of duty.  The relevant licence as well as the relevant notification required the importer to fulfil export obligation in relation to the imported capital goo....

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.... the importer committing default in performing the export obligation caste upon him for the purpose of availment of concession in importing the capital goods.  The differential duty was neither levied nor demanded.  5. On the facts of the case, importer has fulfilled the export obligation though he was not able to produce the relevant certificate within the time.  The licensing authority upon satisfying himself has not only discharged the undertaking, but also discharged the bank guarantee.   While that being the position, the stand of the revenue that the claim made by the respondent is barred by section 27 of the Act cannot be legally sustained, as we are of the view that section 27 of the Customs Act cannot be....

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.... or part thereof.  The bank guarantee is the security for the revenue that in the event of the revenue succeeds, its due will be recoverable being backed up with the guarantee of the bank.  The amount of disputed tax or duty that was secured by a bank guarantee could not therefore be held to be paid to the revenue.  Thus, it is clear that the furnishing of bank guarantee cannot be regarded as payment of duty by the importer to the revenue.  Section 27, which speaks about the refund of the duty paid cannot be pressed into service to deny the refund. 7. In an identical set of facts, this Court, in the case of the Commissioner of Customs (Exports) v. M/s.Jraj Exports (P) Ltd., 2007 (3) TLNJ 532, in which one of us is a p....