TMI Blog2015 (10) TMI 2523X X X X Extracts X X X X X X X X Extracts X X X X ..... case, would be a futile exercise. The second condition of receiving payment in foreign currency is undeniably fulfilled by the appellant. Therefore, by applying the ratio of decision of Apex Court in the case of Share Medical Care v. Union of India [2007 (2) TMI 2 - SUPREME COURT OF INDIA], even if the assessee does not claim benefit under particular notification initially, he is not debarred from claiming such benefit at the later point of time. Hence, we are able to reach inescapable conclusion that the appellant is entitled for refund. - Decided in favour of appellant - E/415/2006-EX(DB) - Final Order No. A/53177/2015 - Dated:- 8-10-2015 - Ms. Sulekha Beevi C.S., Member (J) and Shri B. Ravichandran, Member (T) Shri Rupender Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct refund claim. The adjudicating authority observed that the goods were cleared to Nepal on payment of duty in terms of Notification No. 40/2001-C.E. (N.T.), dated 26-6-2001. The appellant thereafter filed claim for refund under Notification No. 51/94-C.E. (N.T.), dated 22-9-1994 and Notification No. 45/2001-C.E. (N.T.), dated 26-6-2001. Both notifications provide for clearance of the goods without payment of duty. These notifications stipulated condition for execution of bond for clearance of goods and the payment to be made in convertible currency. That though payment was received in convertible currency, the bond stipulated in the notification has not been executed by the appellant. After adjudication, the Order-in-Original dated 10-4-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods is to be granted to His Majesty s Government. In the instant case, though the duty was paid at the time of export, later by variation in contract, the appellants received the payment in freely convertible currency. The appellant then opted to avail the benefit of Notification No. 51/94, dated 22-9-1994 and Notification No. 45/2001-C.E. (N.T.), dated 26-6-2001. The Tribunal had remanded the matter to consider whether the benefit under this notification is available to the appellant. In the second round of adjudication, the refund claim was rejected on the ground that the appellant had not executed the bond and this condition being mandatory, the refund cannot be granted. Needless to say that the condition to execute bond is incorp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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