2000 (10) TMI 87 - AT - Central Excise

Summary

Issues involved:
1. Claim of duty free clearances under exemption Notification 11/97 for importing capital goods.
2. Availing facility of assessment of goods as project import under heading 98.01.
3. Timely production of certificates from the Ministry of Environment and Forests for claiming exemption.
4. Dismissal of refund claim on the ground of limitation.
5. Finalization of provisional assessment and enforcement of bank guarantees.

Issue 1: The appellant imported capital goods for setting up a plant to manufacture refrigerators without using Chlorofluorocarbons (CFCs) and claimed duty free clearances under exemption Notification 11/97. The entry exempted goods for substitution of ozone-depleting substances and setting up new capacity with non-ODS technology, in line with environmental protection protocols.

Issue 2: The appellant also sought assessment of goods as project import under heading 98.01, independent of the exemption. Provisional assessment was done, and the appellant furnished bonds for this purpose and for producing required certificates from the Ministry of Environment and Forests.

Issue 3: The appellant faced delays in obtaining certificates from the Ministry, leading to enforcement of bank guarantees prematurely. The absence of a specific time limit in the notification for producing certificates raised questions on the enforcement of guarantees without justification.

Issue 4: The refund claim of Rs. 41.35 crores was dismissed by the Assistant Commissioner as barred by limitation, being filed six months after the bank guarantee was encashed. However, the Tribunal found the claim not barred by limitation but rather premature.

Issue 5: The Tribunal emphasized that provisional assessments were not finalized, as the goods were assessed provisionally for multiple reasons, and the enforcement of bank guarantees did not equate to finalization of assessment. The premature recovery of the amount was deemed hasty and not in accordance with the law.

In conclusion, the Tribunal set aside the dismissal of the refund claim and directed the department to refund the amount promptly, highlighting the need for adherence to procedural requirements and the principle of provisional assessment until all conditions are met.