TMI Blog2004 (3) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenge in this petition. 3.The contention of petitioner is that the respondent Nos. 1 to 3 should not be allowed to encash the bank guarantee before the expiry of the statutory period of 60 days available for filing appeal against the order of respondent Nos. 2 3 to the CESTAT along with a application for stay and/or waiver of pre-deposit. The Facts : 4.The facts in short are that petitioner had imported second-hand Pontoon upgraded Accommodation Barge from Singapore. The petitioners had claimed classification of the said goods under Heading No. 8901 of the Customs Tariff Act, 1975 and claimed that the said goods imported by it was fully exempt from payment of customs duty in terms of entry No. 350 to Notification No. 21/2002 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Customs Act, 1962. He further submits that the petitioner has an arguable case on classification. According to him, debatable question has resulted in the release of goods subject to the furnishing of the bank guarantee at the stage of the provisional assessment. Had it not been a debatable issue, according to him, the petitioner would not have been allowed to claim release of the goods on furnishing the bank guarantee. The bank guarantee was furnished to secure dues of department. The same is valid and shall be kept alive till the dispute is finally resolved. According to him, order of assessment as on date is not final and conclusive. 8.Mr. Shah, learned Counsel further submitted that as per the policy of the respondents engrafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Contra Mr. A.J. Rana, learned Senior Counsel appearing for the Revenue contends that as per the terms of the bank guarantee, the respondents were entitled to encash the bank guarantee. The respondents are not obliged to wait till the expiry of the appeal period. He further submits that in terms of the bank guarantee, once the assessment is finalised by the concerned department, it is open to the said department to invoke the bank guarantee. In this view of the matter, he submits no fault can be found with the action of the respondents. 13.Mr. Rana placed reliance on the case of Daewoo Motors India Ltd. v. Union of India [2003 (153) E.L.T. 32 (S.C.)]. He also pressed into service another judgment of Gujarat High Court in the case of Elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is clause is concerned, it unequivocally makes it clear that upon the finalisation of the assessment by the concerned department, it would be open for the department to invoke the bank guarantee. As against this, learned Counsel for the petitioner submits that finalisation of assessment means finalisation of assessment by the Appellate authority under the Act. We do not propose to enter into this debatable issue as the same is not necessary to decide this petition. 16.The petitioner has statutory right to appeal. Appeal period is yet to expire. Declared policy of the respondents is not to resort to coercive recovery during the appeal period. In this view of the matter, it was not proper on the part of the respondents to encash the bank gu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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