TMI Blog2008 (1) TMI 160X X X X Extracts X X X X X X X X Extracts X X X X ..... AJA PANDIAN, J-1. The Commissioner of Customs has filed this appeal under section 130 of the Customs Act, 1962 by formulating the following two substantial questions of law : 1. Whether the Hon'ble Tribunal is right in holding that time limit is not applicable to the refund of bank guarantee for Rs.12,58,190/- being the difference in duty between actual rate of duty and concessional rate of duty by enforcing the bank guarantee realised by the appellant on 03.09.2001 and refund claim was filed only on 01.06.2005, i.e., beyond the period of six months as stipulated in section 27 of the Customs Act, 1962? 2. Whether the Tribunal is right in not considering the legal issue that whether the respondent is entitled for refund when the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 of the Customs Act, which provides for refund of any duty and interest, if any, paid on such duty in pursuance of an order of assessment, is misconceived, as there is no payment of duty in pursuance of an order of assessment. The bank guarantee has been furnished in order to safeguard the interest of the revenue in the event of the importer committing default in performing the export obligation caste upon him for the purpose of availment of concession in importing the capital goods. The differential duty was neither levied nor demanded. 5. On the facts of the case, importer has fulfilled the export obligation though he was not able to produce the relevant certificate within the time. The licensing authority upon satisfying hims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of securing revenue in the event of the revenue succeeding in the proceedings before the Court, the Court as a 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 thereof. The bank guarantee is the security for the revenue that in the event of the revenue succeeds, its due will be recoverable being backed up with the guarantee of the bank. The amount of disputed tax or duty that was secured by a bank guarantee could not therefore be held to be paid to the revenue. Thus, it is clear that the furnishing of bank guarantee cannot be regarded as payment of duty by the importer to the revenue. Section 27, which speaks about ..... X X X X Extracts X X X X X X X X Extracts X X X X
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