COMMISSIONER OF CUSTOMS Vs. ARISTO SPINNERS PVT. LTD

JUDGEMENT

(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 : 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 respondent has not discharged the export obligation within the stipulated time?

(3.) 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 himself has not only discharged the undertaking, but also discharged the bank guarantee. While that being the position, the stand of the revenue that the claim made by the respondent is barred by section 27 of the Act cannot be legally sustained, as we are of the view that section 27 of the Customs Act cannot be made applicable to the facts of the present case. This was the view taken by the Constitution Bench of the apex Court in the case of M/s.Somaiya Organis (Private) Ltd. v. State of Uttar Pradesh, 2001 (130) ELT 3. In that case, the collection of vend fee has been challenged. During the challenge proceedings pending before the Court, the appellant before the Supreme Court was directed to furnish bank guarantee. Ultimately, the levy of vend fee has been struck down prospectively with effect from 25.10.1989. In certain other cases, interim orders were passed directing the petitioners to deposit the amount to the Government. In those circumstances of the case, the Supreme Court has held that even though the bank guarantee has been ordered to be furnished prior to 25.10.1989 the guarantee so furnished to ensure the collection cannot be allowed to be invoked.