Custom, Excise & Service Tax Tribunal
Cc (Airport) Chennai vs Kothari Sugars And Chemicals Ltd on 8 February, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
Appeal No.C/SO/250/07 & C/383/07
[Arising out of Order-in-Appeal No.C.Cus.360/07 dt. 31.8.07 passed by the Commissioner of Customs (Appeals), Chennai]
For approval and signature:
Honble Mr. P.G.CHACKO, Member (Judicial)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? :
3. Whether the Member wishes to see the fair copy of
the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
CC (Airport) Chennai
Appellant/s
Versus
Kothari Sugars and Chemicals Ltd.
Respondent/s
Appearance:
Shri J.P.Gregory, JCDR Ms.Natasha Jhaver Consultant For the Appellant/s For the Respondent/s CORAM:
Mr. P.G.Chacko, Member (Judicial) Date of hearing : 8.2.2008 Date of decision : 8.2.2008 Final Order No.____________ This application filed by the Revenue (appellant) is for stay of operation of the impugned order, wherein ld.Commissioner (Appeals) upheld an order of the original authority granting refund of an amount of Rs.6,32,000/- to the assessee (respondent). After examining the records and hearing both sides, I am of the view that the appeal of the Revenue itself requires to be finally disposed of at this stage. Accordingly, the appeal is taken up.
2. Respondents had obtained provisional release of certain capital goods imported under EPCG scheme, on execution of bank guarantees for a total amount of Rs.6,32,000/- equivalent to differential duty payable in the event of non-fulfilment of export obligation under the relevant Notification. The assessment, however, was final. Later on, the assessee produced documentary evidence, from the Joint Director-General of Foreign Trade, of export obligation having been discharged in respect of the equipments imported under EPCG scheme. But, by that time, the Bank Guarantees had been enforced. This took place on 7.8.2001. The assessee filed refund claim for the amount on 29.11.05. The original authority allowed the refund claim and the first appellate authority sustained the decision. Hence this appeal of the Revenue.
3. The lower appellate authority has relied on the Tribunals decision in the cases of Lucas TVS Ltd. Vs CCE Chennai, 2004 (97) ECC 456 (Tribunal) and CC Chennai Vs Aristo Spinners (P) Ltd., 2004 (212) ELT 430 (Tri.-Chennai), wherein bank guarantees encashed by the Revenue were ordered to be encashed to the assessee, after holding that the bank guarantee amounts did not represent duty and hence the time-bar provisions of Section 27 of the Customs Act were not applicable to the refund claims.
4. Ld.JCDR submits that the Civil Miscellaneous Appeals (CMA) filed by the Revenue against the Tribunals orders in the cases of Lucas TVS Ltd. and Aristo Spinners (P) Ltd. have been admitted by the Honble Madras High Court and, therefore, the said orders of the Tribunal have not attained finality and consequently the operation of the impugned order passed by ld.Commissioner (Appeals) by relying on the Tribunals decision has to be stayed. As against this prayer, it is submitted by ld.cousultant for the respondents that the impugned order is in keeping with the ruling of the apex court rendered in Oswal Agro Mills Ltd. Vs Asst.Collector, Ludhiana, 1994 (70) ELT 48 (SC), wherein bank guarantee furnished by an assessee under courts order to secure the Revenue was held not amounting to payment of duty of excise and, accordingly, the provisions of Section 11B of the Central Excise Act was held inapplicable to a claim for refund of such amount.
5. After giving careful consideration to the submissions, I find that the ruling of the apex court in Oswal Agro Mills (supra) was followed by the Tribunal in the case of Aristo Spinners (P) Ltd. (supra). The same ruling is applicable to the facts of the instant case. Hence the decision of the lower appellate authority in favour of the refund claimant by following the Tribunals decision rendered in Aristo Spinners case cannot be faulted, nor can the plea of ld.JCDR that on account of the departmental appeal against Aristo Spinners (supra) having been admitted by the High Court the operation of the impugned order has to be stayed, be accepted. The Honble High Court has not stayed the operation of the Tribunals decision.
6. The issue raised in the Revenues appeal is already covered against them by the ruling of the apex court in Oswal Agro Mills (supra). In the result, the order of the ld.Commissioner (Appeals) is sustained and this appeal of the Revenue is dismissed. The stay petition also gets dismissed.
(Dictated and pronounced in open court) (P.G.CHACKO) MEMBER (J) gs 5 2