TMI Blog2017 (6) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... t also furnished all documents in that behalf - The delay with regard to the submissions of EODC, in our view, could not be attributed to respondent no.2, as requisite steps had been taken by it, immediately after, fulfilment of export obligation by furnishing other relevant documents, which would have demonstrated that the export obligation in point of fact stood fulfilled. As to the nature of the amount deposited in whichever form. If, the amount deposited, is, towards security, surely, once the Assessee succeeds, he is entitled to seek restitution. Restitution, in such like circumstances, is not covered by Section 27 of the Act. Appeal dismissed - decided against Revenue. - C.M.A.Nos.597 to 599 of 2005 - - - Dated:- 19-4-2017 - THE HONOURABLE MR.JUSTICE RAJIV SHAKDHER And THE HONOURABLE MR.JUSTICE R.SURESH KUMAR For the Petitioner : Mr.A.P.Srinivas For the Respondent : Mr.P.Sridharan for M/s.Lakshmi Kumaran 2 C O M M O N J U D G E M E N T (Order of the Court was delivered by RAJIV SHAKDHER,J.) 1.These are appeals preferred by the Revenue against the common judgment and order dated 05.08.2004 passed by the Customs, Excise and Service Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o CMA 597/2005); SCN dated 02.12.1997 (which is relatable to CMA 598/2005); and SCN 05.12.1997 (which is relatable to CMA 599/2005). 5.1.It appears, that after respondent no.2 had been given due opportunity, three separate orders - in - original of even date, i.e., 30.04.2003 were passed qua, the aforementioned SCNs. 5.2.It appears, that pending the adjudication of the said SCNs, the appellant invoked the three Bank Guarantees, furnished by respondent no.2, on 04.08.2001. The three Bank Guarantees - in - issue bear the following details: C.M.A.No. BG No. Date Amount Encashed For Which Refund Sought (in Rs.) 597/2005 G/95-96/182 dated 01.12.1995 7,00,000 598/2005 G/95-96/62 dated 19.07.1995 4,43,000 599/2005 G/95-96/126 dated 19.09.1995 6,82,630 6.The record also shows that after respondent no.2 had filed the documents and/or, applications with JDGFT to obtain EODC from the JDGFT. Three separate applications were made, the details of which are as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore it, by respondent no.2. 8.3.The Tribunal, has in sum, held that at the point in time, when the Revenue encashed the Bank Guarantee, on account of non-production of the EODC's by respondent no.2, it could not be said that it was realizing import duty from respondent no.2, for failure to fulfil export obligation. The amount realized by the Revenue, by way of encashment of Bank Guarantee was not duty and consequently, provisions of Section 27 of the Act, were not applicable. 8.4.In coming to this conclusion, the Tribunal relied upon the judgment of the Supreme Court in Oswal Agro Mills Limited Vs. Assistant Collector of Central Excise, Ludhiana, 1994 (70) E.L.T. 48 (S.C.). 8.5.It is, against this order, that the Revenue, as adverted to above, has perferred the present appeals. 9.Mr.Srinivas, who appears for the Revenue, submits that the order passed by the Tribunal, is erroneous for the following reasons: (i)That the Bank Guarantee was encashed towards the duty amount, as, at the relevant point in time, requisite documents had not been furnished, which would have entitled respondent no.2, to claim exemption under the aforementioned Notification, i.e., Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay, 2002. The exact dates, qua which, are set out herein above. 12.4.The EODCs' were thereafter submitted to the appellant between June, 2001 and July, 2002. The dates, in this behalf, are also indicated by us, herein above. 13.Therefore, quite clearly, in so far as respondent no.2 was concerned, it not only fulfilled the export obligation, well within the time frame, provided under the EPCG Scheme, but also furnished all documents in that behalf. 14.The delay with regard to the submissions of EODC, in our view, could not be attributed to respondent no.2, as requisite steps had been taken by it, immediately after, fulfilment of export obligation by furnishing other relevant documents, which would have demonstrated that the export obligation in point of fact stood fulfilled. 15.The narration of facts, set out above, would show that the appellant infact had also discharged the bond and/or cancelled the bond, once, documents evidencing export had been submitted by respondent no.2 in March, 1999. Therefore, it is not quite understood by us, as to why, the Bank Guarantees in issue, were invoked and encashed by the appellant, after the bond has been cancelled. 16.Be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in favour of the principal administrative officer of the Court or in favour of the concerned Revenue authority. In the event that the Revenue fails in the proceedings before the Court the question of payment of the tax or duty, the amount of which is covered by the bank guarantee, does not arise and, ordinarily, the Court, at the conclusion of its order, directs that the bank guarantee shall stand discharged. Where the Revenue succeeds the amount of the tax or duty becomes payable by the assesses to the Revenue and it is open to the Revenue to invoke the bank guarantee and demand payment thereon. The bank guarantee is security for the Revenue, that in the event the Revenue succeeds its dues will be recoverable, being backed by the guarantee of a bank. In the event, however, unlikely, of the bank refusing to honour its guarantee it would be necessary for the Revenue or, where the bank guarantee is in favour of the principal administrative officer of the Court, that officer to file a suit against the bank for the amount due upon the bank guarantee. The amount of the disputed tax or duty that is secured by a bank guarantee cannot, therefore, be held to be paid to the Revenue. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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