B. C. PATEL, C. J ( 1 ) THE Commissioner Customs, New Delhi has filed this petition. The petitioner has prayed to quash the order dated 26. 09. 2002 passed by the respondent No. 1 whereby direction was given to the petitioner to refund the amount received by way of encroachment of the bank guarantee and also to quash the order of the same date whereby a direction was given to the petitioner to refund the customs duty to the assessee without following the procedure as prescribed under Section 27 (3) of the Customs Act, 1962. The facts are required to be taken from the order made by the Customs, Excise Gold (Control) Appellate Tribunal, copy of which is produced on record at page 25 of the paper book. By the order dated 04. 09. 2002, the Tribunal disposed of the appeal which was filed against the oder in appeal passed by the Commissioner (Appeals ). It is required to be noted that the Commissioner (Appeals) dismissed the appeal on the ground that the appeal was not maintainable. ( 2 ) BY an order dated 31. 05. 2004/04. 06. 2002, the Commissioner of Customs adjudicated the show cause notices dated 19. 12. 2000 and 16. 08. 2001. The show cause notices were in relation to the valuation of the Concentrate of Alcoholic Beverages (CAB) imported by the appellants from Scotland during the period from 1995 to May 2001. The Commissioner finalised the provisional assessment and confirmed the differential duty demand. Against the above order, the assessee filed appeal alongwith stay application before the Tribunal. It is required to be noted that based on the order passed by the Commissioner, the Deputy Commissioner of Customs finalised the provisional assessment for the subsequent period, namely, June 2001 to May 2002 covering 46 Bills of Entry with the which the present petition is confined. The differential duty was confined to the tune of Rs. 8,81,85,011 under the proceedings dated 19. 06. 2002. ( 3 ) THE department sought to encash the bank guarantee executed by the assessee for an amount of Rs. 12. 77 crores as a consequence of finalisation of the assessment as above. The assessee was constrained to file a writ petition before this Court being CW3885/2002. 8,81,85,011 under the proceedings dated 19. 06. 2002. ( 3 ) THE department sought to encash the bank guarantee executed by the assessee for an amount of Rs. 12. 77 crores as a consequence of finalisation of the assessment as above. The assessee was constrained to file a writ petition before this Court being CW3885/2002. By an interim order, the department was directed to maintain status quo with regard to the status of bank guarantee till the disposal of the writ petition and thereafter the High Court disposed of the writ petition by an order dated 23. 07. 2002 with the direction that the interim order dated 09. 06. 2002 passed by the High Court would continue to be in force till the Commissioner of Customs (Appeals) takes a final decision on the application stated to have been filed by the petitioner. ( 4 ) IT transpires that the Commissioner (Appeals) dismissed the appeal as well as the stay application holding that the order impugned can be stated to be only a correspondence. It is in view of this before the Appellate Tribunal it was pointed out that grave error has been committed by the Commissioner of Customs (Appeals) as it was not a mere correspondence but an order indicating finalising the assessment for the period from June 2001 to May 2002 covering 46 Bills of Entry. In the meanwhile, the bank guarantee was encashed to the tune of Rs. 12. 77 crores on 02. 09. 2002. It may be noted that the Tribunal pointed out that if the proceedings impugned before the Commissioner of Customs (Appeals) was only a correspondence and not a proceeding finalising the assessment, how the revenue could have proceeded to realise the amount due before it proceeded by way of encashing the bank guarantee. The Tribunal held that the Commissioner decided finally and also impugned before the Commissioner was an order and not a correspondence. The Tribunal, therefore, held that the Commissioner (Appeals) has committed a grave error in dismissing the appeal and the application for stay on the ground that the appeal is not maintainable. It is in view of this the order was set aside and the appeal as well as the stay application came to be restored by the order made by the Tribunal. It is in view of this the order was set aside and the appeal as well as the stay application came to be restored by the order made by the Tribunal. It is required to be noted that the Revenue has not challenged that part of the order before this Court. ( 5 ) THE Tribunal, while disposing of the appeal, also directed that the action of the Commissioner being illegal and untenable in law, the Revenue was directed to see that the amount is returned and the bank guarantee is submitted by the assessee as it was already submitted within a period of two weeks. While issuing this direction, the Tribunal held that the Commissioner has not only dismissed the stay application alongwith the appeal and considering the decision of the Bombay High Court in the case of Mahindra and Mahindra Ltd. v. Uoi: 1992 (59) ELT 505, directed the respondent to see that the status quo ante is maintained. And, in fact, the order made by the High Court came to be revived by the Tribunal. ( 6 ) IT is this part of the order which is strongly objected by the Revenue by stating that the Tribunal had no jurisdiction to pass such an order. It was open for the petitioner to come to this Court for obtaining such an order and this Court could have passed the order, if deemed fit. It is at this juncture that it is required to be noted that the assessee had also preferred a writ petition for such a relief, though immediately after the order was made, but after about a period of four months. ( 7 ) WE have perused the order passed by the Bombay High Court in the case of Mahindra and Mahindra (supra ). The Division Bench pointed out that the three months time which is given by the statute is required to be respected and when the amount was secured, it could not be said that there was any emergency in encashing the bank guarantee. In the instant case, the order was passed on 27. 08. 2002 and the bank guarantee was encashed on 02. 09. 2002. According to the assessee, the order was received by him on 02. 09. 2002, while according to the petitioner, it was received by the petitioner on the same date, namely, 31. 08. 2002. In the instant case, the order was passed on 27. 08. 2002 and the bank guarantee was encashed on 02. 09. 2002. According to the assessee, the order was received by him on 02. 09. 2002, while according to the petitioner, it was received by the petitioner on the same date, namely, 31. 08. 2002. Page 187 of the paper book refers to the date of communication of the order as 31. 08. 2002. The petitioner has pointed out the copy of the order at Annexure a page 179 which clearly indicates that the order was despatched on 02. 09. 2002. The learned counsel has explained that at page 187, there is a reference to the order dated 31. 08. 2002 as the bank informed by the fax about the passing of the order and that is how he has referred the said dated. Whatever it may be, we are not required to examine these aspects in detail but suffice it to say that the Commissioner after receiving the order approached bank for encashment without waiting for the expiry of the period of limitation. ( 8 ) THE Bombay High Court in the case of Mahindra and Mahindra (supra) has pointed out that it is improper to invoke the bank guarantee in such a situation. ( 9 ) INSOFAR as the contention raised by the learned counsel for the revenue that the Tribunal could not have granted refund is concerned, it is required to be noted that, in fact, there is no refund but the direction is given to the fact that the amount be returned to the petitioner and the petitioner is directed to furnish the bank guarantee of the same amount, namely, Rs. 12. 77 crores so as to maintain status quo ante by both the sides in view of the order made by the High Court earlier. Our attention was invited to the decision of the Supreme Court in the case of Oswal Agro Mills Ltd v. Assistant Collector Central Excise, Ludhiana: 1994 (70) ELT 48 (SC ). The Court considered the arguments with regard to Section 11 B of the Central Excises and Salt Act, 1944 which is not pari materia to section 27 of the Customs Act. The Court considered the arguments with regard to Section 11 B of the Central Excises and Salt Act, 1944 which is not pari materia to section 27 of the Customs Act. The court pointed out as under in paragraph 10 thereof:- ( 10 ) THE question, therefore, is whether it can be said that the furnishing of a bank guarantee for all or part of the disputed excise duty pursuant to an order of the court is equivalent to payment of the amount of excise duty. In our view, the answer is in the negative. For the purposes of securing the Revenue in the event of the Revenue succeeding in proceedings before a Court, the Court, as a condition of staying the demand for the disputed tax or duty, imposes a condition that the assessee shall provide a bank guarantee for the full amount of such tax or duty or part thereof. The bank guarantee is required to be given either 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 assessee 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. There is no question of its refund, andSection 11 B is not attracted. " 10. 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. There is no question of its refund, andSection 11 B is not attracted. " 10. Thus, it is clear that the amount of dispute of duty, i. e. , secured by the bank guarantee, therefore, be held to be paid to the Revenue. There is no question of its refund and, therefore, Section 11 B is not attracted. The Supreme Court in para 11 of the said judgment directed as under:- "we reiterate our direction to the 1st and 2nd respondents forthwith to re-pay to the State Bank of Patiala, Overseas Branch, Millar Ganj, Ludhiana, the amount of Rs. 1,18,00,000/- collected upon the bank guarantees within two weeks. ( 11 ) THE Tribunal has used the word refund , but in fact it is not refund because on payment of the amount, the bank guarantee of the same amount is required to be furnished by the petitioner and actually it is a repayment as directed by the Supreme Court in the case of Oswal Agro (supra ). ( 12 ) WE are not examining the aspect whether the Tribunal had the jurisdiction to pass such an order or not in view of the facts and circumstances of the case as in view of the order passed by the Tribunal, the status quo ante is directed to be maintained and we feel that that would be an appropriate order in this case. ( 13 ) IN view of what we have stated above, this writ petition is required to be disposed of and is disposed of accordingly. ( 14 ) IN view of the order we have passed in the aforesaid writ petition, the writ petition filed by the assessee has become infructuous and stands disposed of. At the request of the learned counsel for the assessee, we direct that the revenue shall deposit the amount in the Citi Bank, 3 Parliament Street, New Delhi to enable the said bank to issue immediately a bank guarantee in favour of the Commissioner Customs, ICD Tughlaqabad in terms of the earlier bank guarantee issued by the said bank. At the request of the learned counsel for the assessee, we direct that the revenue shall deposit the amount in the Citi Bank, 3 Parliament Street, New Delhi to enable the said bank to issue immediately a bank guarantee in favour of the Commissioner Customs, ICD Tughlaqabad in terms of the earlier bank guarantee issued by the said bank. The bank guarantee shall be issued for a period of two years initially and thereafter it shall be renewed automatically if it is not invoked or discharged in view of the order that may be passed by the competent authorities. CHIEF JUSTICE BADAR DURREZ AHMED, J july 05 , 2004 sd **cw6712. 02and327. 03. sxw**//final//