2017 (11) TMI 1123

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.... certain capital goods on payment of concessional customs duty under the Export Promotion Capital Goods Scheme issued by the Joint Director General of Foreign Trade vide EPCG license No.0430000444 dated 24.10.2001. The validity of the license was for a period of eight years and the petitioner has an obligation to export the goods manufactured using the capital goods imported against the license. 3. Though the petitioner fulfilled the export obligation within time, the requisite certificate was not issued by the Joint Director General of Foreign Trade on certain administrative grounds. However, the respondent proceeded to initiate action against the petitioner and an Order-in-Original dated 25.4.2011 was passed demanding duty to the tune ....

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.... TR6 challan for encashment of bank guarantee and a copy of the bond cancellation, etc. 6. Further, the petitioner, through their counsel, addressed to the respondent dated 03.8.2017, pointing that there is no necessity for them to approach the Assistant Commissioner of Customs (Refunds) or filing an application for refund and placed reliance on the decision of this Court in the case of Nizamabad Agro Private Limited Vs. Assistant Commissioner of Customs (EODC) [reported in (2016) 340 ELT 166]. However, both the respondent and the Assistant Commissioner of Customs (Refunds) reiterated the same stand and sent communications dated 04.9.2017 and 07.9.2017 respectively. Thus, the petitioner, thereafter, probably due to compulsion, presented ....

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.... to whether the refund of bank guarantee would amount to collection of tax and the Hon'ble Division Bench of this Court has held as follows:- '6. In yet another case is Oswal Agro Mills Ltd. Vs. Assistant Collector of Central Excise, 1994 (2) SCC 546 also the Supreme Court has taken the same view to the effect that furnishing of bank guarantee pursuant to the order of the Court was not equivalent to payment of excise duty and for the purpose of securing revenue in the event of the revenue succeeding in the proceedings before the Court, the Court as the condition of staying the demand in the disputed tax or duty imposed a condition that the assessee should provide a bank guarantee for the full amount of tax or duty or part t....

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....e factual position and effect refund within a reasonable time, not later than eight weeks from the date of the receipt of the representation by the third respondent." 9. Apart from the legal position, on facts, in the instant case, the respondent cannot now relegate the petitioner to the Assistant Commissioner (Refunds) in the light of the order passed by the Commissioner (Appeals) dated 30.5.2013. The Commissioner (Appeals) allowed the appeal filed by the petitioner and set aside the order passed by the respondent dated 25.4.2011. Further, the Commissioner (Appeals) directed that status quo to be maintained till the petitioner produces EODC and once it is produced and if it is found to be in order, the amount recovered by encashing the ....