2006 (2) TMI 308 - AT - Central Excise

Refund - Excess payment of duty - Provisional assessment - HELD THAT - In the present case when the goods are cleared the price is not finalized the payment of duty is on the basis of the price in the previous contract hence we have to consider the price as provisional only. Consequently when there is price escalation the appellants voluntarily pay the differential duty to the exchequer. Similar treatment should be meeted out to the appellant by the Department. In other words when there is a reduction in price the appellant is entitled for refund. Following the ratio of the decision in the case of CCE v. Telk Ltd. 2005 (1) TMI 148 - CESTAT BANGALORE we allow the appeal with consequential relief. We want to add that while extending the relief the original authority would keep in mind the unjust enrichment aspect.

Summary

Issues:
Appeal against rejection of refund claim for differential duty paid in excess due to higher price of goods cleared. Challenge based on distinguishable facts from MRF case, provisional pricing due to ongoing contract negotiations, and voluntary payment of differential duty in case of price escalation.

Analysis:
1. The appellant, a manufacturer of explosives, supplies products to public sector undertakings based on tender prices and negotiations. The appellant clears goods at provisional prices during contract finalization, paying differential duty voluntarily in case of price increase. A refund claim for excess duty paid was rejected by the Asst. Commissioner and upheld by the Commissioner (A) citing MRF case and unjust enrichment. The appellant's challenge focused on the provisional nature of pricing due to ongoing negotiations, distinguishing it from the MRF case.

2. The appellant argued that unlike MRF, no fixed price existed at clearance, as the contract was under negotiation. The price for the relevant period was known only when the customer placed a retrospective purchase order. The appellant notified authorities of ongoing negotiations, indicating provisional pricing. Citing various case laws, the appellant contended that the purchase order price should not be considered a reduction, as it was provisional until contract finalization.

3. The Tribunal analyzed the case records and acknowledged the provisional nature of pricing at clearance, with duty payment based on previous contract prices. The Tribunal noted the appellant's voluntary payment of differential duty in case of price escalation. Referring to precedent, the Tribunal emphasized that when there is a reduction in price, the appellant is entitled to a refund. The Tribunal distinguished the facts from the MRF case and allowed the appeal, emphasizing consideration of unjust enrichment in granting relief.

4. The Tribunal's decision aligned with the appellant's argument, recognizing the provisional pricing nature due to ongoing contract negotiations. By allowing the appeal and providing consequential relief, the Tribunal emphasized the distinction from the MRF case and highlighted the importance of considering unjust enrichment in granting refunds. The decision was pronounced in open court on 3-2-2006.