TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 616
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of 6 months as envisaged under Section 27 of Customs Act, 1962 is not applicable to the refund amount realised by the Revenue by enforcing Bank Guarantee as this does not represent any duty under Section 27 of the Customs Act?" 3.We may note that the parties in the three appeals are identical. 3.1.In order to adjudicate upon the appeals, which raise common questions of law, the following facts are required to be noticed: 3.2.Respondent no.2, it appears, imported various capital goods and assessories under the EPCG Scheme. Accordingly, having regard to the said Scheme, clearances were allowed at a concessional rate of duty of 15% subject to the conditions specified in the Custom's Notification No.110/95, dated 05.06.1995. 3.3.In terms of the aforementioned Notification, respondent no.2 executed three Bank Guarantees of different amounts, as also, bonds. One of the conditions stipulated qua, respondent no.2 was that it was required to fulfil the stipulated export obligation, within a period of five years, from the date of issuance of EPCG Licenses. 4.Evidently, notice was issued to respondent no.2 by the concerned Authorities, to submit documents evidencing fulfilment of ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ue date for fulfilment of export obligation would have expired in different months in 2000. The exact details with regard to the aforesaid aspects are set out hereinafter: C.M.A.No. EPCG License No. & Date Due Date For Fulfillment Of Export Obligation 597/2005 2123906 dated 26.10.1995 25.10.2000 598/2005 2123833 dated 06.06.1995 05.06.2000 599/2005 2123603 dated 31.08.1995 30.08.2000 7.It appears, that pursuant thereto, as indicated above, since the necessary documents had been filed, three separate applications, for refund were lodged by respondent no.2. These applications, bear an even date i.e., 21.04.2003. 8.However, despite these facts, obtaining in the matter, respondent no.2, failed in its appeal, preferred before the Commissioner of Customs (Appeals). 8.1.The Commissioner of Customs (Appeals), vide a common order dated 31.12.2003, rejected the appeals, on the ground that the refund claims had not been preferred, within the period of limitation, as then obtaining under Section 27 of the Customs Act, 1962 (in short the "Act"). 8.2.It is, against this common order passed by the Commissioner of Customs (Appeals), that respondent No.2 preferred ap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led by the Revenue. 11.We have heard the learned counsels for the parties and perused the record. 12. According to us, what clearly emerges is that respondent no.2 had been issued three licenses between June, 1995 and October, 1995, for importing capital goods at a concessional rate of duty. This facility could be made available to respondent no.2, by virtue of the provisions of Notification No.110/1995. Admittedly, under the EPCG Scheme, respondent No.2, had a leeway of five years for completing the export obligation. 12.1.Concededly, the export obligation qua, each of the three licenses undertaken by respondent no.2, was discharged between the period 1996-97. The requisite documents, to demonstrate the fulfilment of export obligations qua, each of the three licenses issued to it, were also submitted by March, 1999. The only document, which, respondent no.2 was unable to place before the appellant, was the EODC, which had to be issued by the JDGFT. 12.2.As a matter of fact, respondent no.2 had applied for issuance of EODC with respect to two licenses, as is indicated above, in our narration, on 25.03.1999, while qua the third license, the application had been made on 21.12.200....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ate of duty. 19.In our view, there is no error, in the approach adopted by the Tribunal. The reliance by the Tribunal on the judgment of the Supreme Court rendered in Oswal Agro Mills Limited, is also in order. The relevant observations made by the Supreme Court are contained in paragraphs 9 and 10; which, for the sake of convenience are extracted hereafter: "9. Section 11 B applies when an assesses claims refund of excise duty. A claim for refund is a claim for repayment. It presupposes that the amount of the excise duty has been paid over to the excise authorities. It is then that the excise authorities would be required to repay or refund the excise duty. 10. The question, therefore, is whether it 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. For the purposes of securing the Revenue in the event of the Revenue succeeding in proceedings before a Court, the Court, as a condition of staying the demand for the disputed tax or duty, imposes a condition that the assesses shall provide a bank guarante....