TMI Blog2008 (2) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, the Commissioner held that the order of the Assistant Commissioner sanctioning refund of ₹ 1,50,00/- to the appellants was not in order. After hearing both sides on the stay petition, the petition is dismissed and the appeal itself is taken up. 2. The apellants had obtained an advance license dated 22-1-2003 to import automobile components. A main condition of the licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished and submitted the EODC. The original authority sanctioned the refund considering the delay in obtaining the EODC in time as due to the time taken by the DGFT. 4. The department filed an appeal against the order of the original authority. Disposing the appeal, the Commissioner (Appeals) observed in the impugned order that the appellant was not diligent enough in seeking the refund and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r officer and the assessment was not challenged, refund claim contrary to the assessment could not be granted. The appellant had failed to challenge the orders of the lower authorities. With the above observations he set aside the order of the original authority and rejected the refund claim. In the appeal before the Tribunal and during hearing, it is submitted that the impugned order was passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the Hon ble High Court had held the same view. It was decided that furnishing of bank guarantee was not payment of duty, therefore, limitation in Section 27 did not apply to refund of the amount received on encashment of the bank guarantee by the department for delay in furnishing EODC. 5. The ld. SDR submits that the party was informed of the decision to encash the bank guarantee and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay on the part of the importer. I find that the Commissioner had erroneously relied on the ratio of the decisions of the Apex Court on Priya Blue case and Flock India case (supra). The ratio of the decisions of the Madras High Court and the Tribunal cited by the ld. Counsel for the appellants fully supports his claim that the amount realized on encashment of bank guarantee is not duty and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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