2003 (6) TMI 401 - AT - Central Excise

Summary

Issues Involved:
Claim for refund of over Rs. 8 lakhs being time-barred.

Analysis:
The issue in this case revolved around the appellant's claim for a refund of over Rs. 8 lakhs paid during the period 1995-96, which was rejected by the Commissioner (Appeals) as time-barred. The appellant contended that the finding of the refund claim being time-barred was illegal as the original duty payment was provisional. The appellant argued that the refund claim was filed before the finalization of the assessment, supported by relevant records and correspondence with the Assistant Commissioner of Central Excise. The appellant emphasized that the discount issue raised in the refund application was not considered during the finalization of the assessment, causing significant financial loss. The learned Counsel for the appellant highlighted that discounts should be deducted from the sale price for determining the assessable value of goods, and the repeated rejection of the refund claim had caused substantial loss to the appellant.

The learned SDR pointed out that the impugned order did not address the merits of the refund claim, emphasizing that the appeal could not be allowed without a detailed examination of the case. Referring to the Order-in-Original by the Assistant Commissioner, the SDR argued that all clearances, including removals to depots, should be assessed based on ex-factory prices, citing the decision of the Supreme Court in a relevant case. The SDR contended that the appellant could not claim a refund without challenging the finalization of the provisional assessment, supported by legal precedents.

In response, the appellant's Counsel argued that the appellant's case was distinguishable from the legal precedent cited by the SDR, as all sales were on a FOR destination basis without any ex-factory sales. The Counsel highlighted that during the relevant period, assessments were to be made based on invoice prices according to CBEC clarification. The Counsel maintained that the objection raised by the Revenue was not valid since the original assessments were provisional and depot prices were treated as a separate class. The Counsel further argued that the finalization of the assessment on the freight issue did not impact the refund claim related to discounts separately considered.

After reviewing the submissions and records, the Tribunal found that the original assessments were provisional, and the refund application was filed before finalization, negating the time-bar argument. The Tribunal concluded that the Commissioner (Appeals) erred in rejecting the claim as time-barred. On the merits of the case, the Tribunal found the appellant's position strong, noting that discounts were deducted from the sale price, and the objection regarding ex-factory prices lacked merit. The Tribunal emphasized that discounts were eligible for deduction regardless of their name, and in light of the circumstances, the refund claimed by the appellant was deemed acceptable. Given the extended period since the excess duty payment, the Tribunal directed that the refund amount be paid to the appellant promptly within four weeks of the order's receipt to prevent further delay.