In case Tribunal gives a contrary decision, Commissioner has fullest respect for same and shall abide by same in letter and spirit
WE reported the final order passed in this case as and the issue involved was import of a “Hummer Car”. The Bench had inter alia held that the appellant was entitled for the benefit of notification 21/2002-Cus and while allowing the appeals also held - “In Customs Act nowhere is it mentioned that arranging for loan or giving amount on lease for payment of duty of imported goods constitutes offence for imposition of penalty under Section 112(a)/(b)”.
Although the appeals were allowed with consequential relief, no such consequential relief came their way. So, the applicant has filed a miscellaneous application seeking release of the bank guarantees of Rs.20 lakhs executed by them while seeking provisional release of the “Hummer”.
The Bench noted that the final order was passed on 30.10.2012 in the Open court and as per the Board's Circular no. 802/35/2004-CX dated 8.12.2004, when an issue is decided by the Tribunal in favour of the assessee, Revenue is bound to release the Bank guarantee within 90 days of the said order.
A report was, therefore, called from the Commissioner of Customs(Import), Nhava Sheva and this is the reply addressed to the Commissioner (AR) -
“…As submitted earlier, DRI, Mumbai has requested this office to file an Appeal before the Hon'ble Supreme Court against the judgement of Hon'ble Tribunal. Accordingly, this office is in the process of sending a proposal to the Legal Cell, CBEC for filing an appeal along with the stay application on the said order.
You are, therefore, requested to plead before Hon'ble Tribunal craving their indulgence to allow us to hold the Bank Guarantee for a period of six months, pending filing of an Appeal before the Hon'ble Apex Court and finalization of Stay application.
You are also requested to kindly impress upon the Hon'ble Tribunal that Bank Guarantee is the only security towards realizable and legal revenue. Without any collateral security, like Bank Guarantee, the interest of the Revenue would be in jeopardy.
This Commissionerate would be highly obliged if the Hon'ble Tribunal grants us a six months time period for the return of Bank Guarantee. However, if Hon'ble Tribunal gives a contrary decision, we would have the fullest respect for the same and shall abide by the same, in letter and spirit.
Yours faithfully,
Xxx”
The Bench observed -
“3. As per the Board's Circular, the Revenue is bound to release the bank guarantees unless and until it is stayed by the higher forum. No stay is obtained by the Revenue as per the report filed by them. Therefore, in the interest of justice, Revenue is granted 10 days time to comply with the Tribunal's order dated 30.12.2012 (sic), failing which the concerned official shall face the consequences. The matter to come up on 08/04/2012 (sic).
2. Copy of this order be given Dasti.”
A department that is prompt to abide by the Board Circular 967/01/2013-CX while effecting recovery should also be sportive enough to follow the Board Circular 802/35/2004.
DDT will keep you posted on the case.
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