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2022 (8) TMI 508 - BOMBAY HIGH COURTMaintainability of petition - availability of alternate and efficacious remedy of appeal - Denial of refund - Non adhering to the instruction given by the CBEC - seeking refund/restoration of the bank guarantee and maintenance of the status quo till final disposal of the appeal pending in the Customs, Excise and Service Tax appellate Tribunal - HELD THAT:- In the undisputed facts from the record, the remedy of appeal can hardly be regarded as efficacious to seek redress against the coercive action of encashment of the Bank Guarantee - Admittedly, the Order in Original dated 30.06.2020 was issued on 06.07.2020 but served on the petitioner only on 15.07.2020. The order states that any person aggrieved by the same may prefer an appeal to the Appellate Tribunal under Section 129(3) of Customs Act, 1962 within three months from the date of the communication of the order with the Assistant Registrar, Customs, Excise and Service Tax Appellate Tribunal (CESTAT), Western Bench, Mumbai. In NG. ENTERPRISES VERSUS COMMISSIONER OF CUSTOMS (APPEALS), NEW DELHI [2000 (5) TMI 53 - HIGH COURT OF DELHI], the Division Bench of the Delhi High Court, by referring to the Board's circular dated 02.06.1998, held that the revenue could not be permitted to take a stand contrary to the instructions issued by the Board. It is a different matter that an assessed can contest the validity or legality of a departmental instruction. But that right cannot be conceded to the Department, more so when others have acted according to such instructions. The circular, in terms, provided that coercive measures to recover duty demanded as a result of adjudication ought not to be taken until the Commissioner's disposal of the stay application. Moreover, the Circular took cognizance of the Bombay High Court ruling that no coercive action should be taken to realize the dues during the pendency of the stay application before appellate authorities. In the present case, the respondents have acted not only in breach of the Circular of CBEC, which was binding on them but also in breach of the law laid down by the several decisions referred to above. The CBEC circular and the instructions bind the Customs Authorities. In any case, the Customs Authorities are bound by the various decisions referred above, not to mention the solemn assurance on behalf of the Union of India that in the future, adequate care would be taken to follow the law laid down by this Court scrupulously. Therefore, the impugned action is unsustainable. The Commissioner of Customs (respondent no.2) are directed to circulate this judgment and order to all Assistant Commissioners or adjudicating Officers so that in future, there are no similar instances of breach of CBEC instructions or the disobedience of judicial orders - appeal disposed off.
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