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2006 (2) TMI 360 - AT - Central ExciseRefund - Limitation - Valuation - whether the appellants are entitled to refund of the excise duty paid on the gas cylinders cleared by them on account of reduction of price of the cylinders by the oil companies to whom they sold the cylinders? - HELD THAT - Since, the appellants have informed the department that the prices are provisional and the agreements with the oil companies also indicate that the prices are subject to revision with retrospective effect, we have to treat the assessment as provisional and the time bar would not be applicable. All the case laws relied on by the appellants are very relevant. When the department does not have any hesitation in receiving the differential duty on account of upward revision of prices, they cannot take a different stand and reject the refund claim when there is downward revision on the ground that the assessments are final and the demands are time barred. Since the appellants have informed the department of the fact of price variation in all these cases, the assessments on RT-12 should be deemed to be provisional and therefore, the time bar would not be applicable. The fact that no bond was executed under Rule 9B should not stand in the way of treating the assessment as provisional. In the result, we allow the appeals with consequential relief.
Issues:
Entitlement to refund of excise duty paid on gas cylinders due to price reduction and time bar for refund claims. Analysis: The appeals were filed against Orders-in-Appeal passed by the CCE (Appeals), Hyderabad, regarding the refund of excise duty paid on gas cylinders due to a reduction in price by the oil companies to whom they were sold. The Original Authority rejected the refund claims as time-barred. The appellants argued that the prices of the cylinders were provisional as per the supplying order terms agreed upon, and they had informed the superintendent about the provisional nature of prices. The lower appellate authority rejected the appeals based on non-compliance with Rule 9B and cited previous Tribunal decisions like Rajiv Mardia and Hindustan Wires Ltd. The appellants contended that the assessments should be considered provisional, and time bar should not apply. The learned Advocate for the appellants highlighted that the prices quoted for the gas cylinders were provisional, subject to finalization with retrospective effect. They would pay differential duty for upward price revisions and claim refunds for downward revisions. Citing the Tribunal's decision in Indian Aluminium Cables case and Bombay High Court's decision in Premier Automobiles Ltd case, it was argued that claims for refund due to retrospective price reductions are not time-barred. Case laws like Pre-stressed concrete Poles, Asiatic Oxygen & Acetylene Co. Ltd., Indo Floodgates Ltd., and Orient Pre-stressed Products (P) Ltd. were relied upon to support the argument that assessments with price escalation clauses should be considered provisional. Upon careful review of the case records, the Tribunal found that the appellants had informed the department about the provisional nature of prices and had paid differential duty for price revisions. The agreements with oil companies also indicated that prices were subject to retrospective revision. Therefore, the Tribunal held that the assessments should be treated as provisional, and the time bar should not apply. It was emphasized that since the department accepted differential duty for upward price revisions, they could not reject refund claims for downward revisions on the grounds of final assessments and time bar. The absence of a bond under Rule 9B was not considered a hindrance to treating the assessments as provisional. As a result, the appeals were allowed with consequential relief. In conclusion, the Tribunal ruled in favor of the appellants, allowing the refund claims for excise duty paid on gas cylinders due to price reduction, considering the assessments as provisional and not time-barred. The decision emphasized the importance of informing the department about price variations and upheld the appellants' right to claim refunds for downward price revisions.
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