2006 (8) TMI 420 - AT - Central Excise

Issues Involved:
1. Provisional Assessment
2. Time Barred Refund Claims
3. Unjust Enrichment
4. Compliance with Rule 9B and Rule 7
5. Evidence of Non-passing of Duty Incidence

Issue-wise Detailed Analysis:

1. Provisional Assessment:
The appellants argued that their assessments should be considered provisional due to the price variation clauses in their contracts with oil companies. They contended that since the prices were provisional, the assessments should be deemed provisional under Rule 9B of the Central Excise Rules, 1944, and Rule 7 of the Central Excise (No. 2) Rules, 2001 and 2002. The Tribunal, however, found that there was no formal request or order for provisional assessment as required by the rules. The Tribunal emphasized that merely mentioning that prices were provisional does not constitute a provisional assessment unless there is an order from the proper officer.

2. Time Barred Refund Claims:
The Tribunal upheld the rejection of refund claims that were filed beyond the prescribed period of limitation under Section 11B of the Central Excise Act, 1944. For Indian LPG Cylinders, the refund claim filed on 27-8-2002 for the period from 1-7-1999 to 31-10-2000 was deemed time-barred. Similarly, for Tirupati LPG Industries Limited, the claim for Rs. 32,574.45 related to invoices dated 31-1-2001 was also found to be time-barred as the claim was made on 21-2-2002, beyond the one-year limitation period.

3. Unjust Enrichment:
The Tribunal held that the appellants failed to prove that they had not passed on the incidence of duty to the buyers, invoking the bar of unjust enrichment under Section 12B of the Central Excise Act, 1944. The appellants did not provide sufficient evidence to show that the excess duty collected was refunded to the oil companies or adjusted in future bills.

4. Compliance with Rule 9B and Rule 7:
The Tribunal noted that the appellants did not follow the procedural requirements for provisional assessment under Rule 9B of the Central Excise Rules, 1944, or Rule 7 of the Central Excise (No. 2) Rules, 2001 and 2002. There was no written request for provisional assessment, nor was there any order from the proper officer. The Tribunal emphasized that compliance with these rules is mandatory for an assessment to be considered provisional.

5. Evidence of Non-passing of Duty Incidence:
The Tribunal found that the appellants did not provide adequate documentary evidence to establish that the duty incidence was not passed on to the buyers. The authorities below had rightly held that the appellants failed to prove that the excess duty collected was refunded to the oil companies or adjusted in future bills.

Separate Judgments:
1. Indian LPG Cylinders (Appeal No. E/5176/04): The appeal was dismissed as the refund claim was time-barred and there was no evidence of provisional assessment or non-passing of duty incidence.

2. Tirupati LPG Industries Limited (Appeal No. E/5177/04): The appeal was allowed by way of remand for reconsideration of the refund claim within the prescribed period of limitation.

3. Tirupati LPG Industries Limited (Appeal No. E/5178/04): The appeal was partly allowed by way of remand for reconsideration of the refund claim for the period from 21-2-2001 to 15-3-2001, while the claim for Rs. 32,574.45 was upheld as time-barred.

Conclusion:
The Tribunal emphasized the importance of compliance with procedural rules for provisional assessment and the requirement of providing sufficient evidence to establish non-passing of duty incidence. The appeals were decided based on the adherence to these legal principles and the prescribed limitation periods for refund claims.

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