TMI Blog2007 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... learned CESTAT to hold that Bank Guarantee is a security in lieu of duty even after enforcing the same and appropriated towards the duty by the Department ?" 2. The first respondent in this appeal had imported capital goods under EPCG Licence No. 2142049 dated 1-7-1998 with the condition to fulfill the export obligation imposed against the above EPCG licence within the prescribed time limit. The first respondent failed to submit the Export Obligation Discharge Certificate from the appropriate authority, even after the expiry of the prescribed time. Hence, the appellant had invoked the Bank guarantee furnished for the proper performance of the condition attached to the EPCG licence in a sum of Rs. 5,54,046/- and the amount was realised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for refund of the bank guarantee wrongly encashed was rejected on the ground that the claim is time barred. The case of the appellant has to be rejected on two grounds, firstly on facts. It is evident from the records that the bank guarantee was invoked and the amount was credited to the Customs Treasury on 1-4-2004. The first respondent produced the Export Obligation discharge certificate obtained from the Director General of Foreign Trade on 16-4-2004, based on which the appellant duly cancelled the bond and the Bank guarantee during the month of August 2004. When the department accepted the fulfilment of export obligation and the export obligation discharge certificate issued by the Director General of Foreign Trade, there is no need e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the first respondent paid the amount which they would have paid in the circumstances of non-performance of the export obligation. Hence the reason stated that the demand was made beyond the period pre scribed under Section 27(1)(b) of the Customs Act has to be rejected. 5. Learned counsel for the appellant relied on the often quoted judgment in Mafatlal Industries Ltd. and Others v. Union of India and Others [1997 (89) E.L.T. 247 (S.C.) = 1997 (5) SCC 536] in order to contend that the refund should be ordered only in accordance with the provisions of the statute. Here again, there is a fallacy in the argument of the counsel for the appellant in the sense that the Supreme Court in that case has formulated only the procedure t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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