2011 (6) TMI 537 - AT - Central Excise

Refund claim - agreement between the respondents and the buyers the price is subject to variation. Later the price was revised and in fact it was lowered Held that - in the case of M/s. Priya Blue Industries Ltd. (2004 (9) TMI 105 - SUPREME COURT OF INDIA) has held that validity of an assessment cannot be considered while dealing with the refund claim. The said ratio would apply to the self-assessment as well. appellant is eligible for the refund claim. order is set aside and appeal is allowed

Summary

Issues:
1. Refund claim based on price revision in supply orders.
2. Provisional assessment requirement for refund eligibility.
3. Applicability of case laws on refund claims in price revision scenarios.
4. Impact of self-assessment on refund claims.

Analysis:
1. The case involves a dispute regarding a refund claim filed by the appellant due to a downward revision in prices for supply orders of Electrical Aluminium Cables to a power distribution company. The original adjudicating authority granted the refund, finding no unjust enrichment, but the Revenue appealed the decision, leading to the impugned order confirming a demand for the refund amount. The appellant sought a stay against the recovery of the amount.

2. The issue of provisional assessment requirement for refund eligibility was raised during the proceedings. The counsel for the appellant argued that the absence of provisional assessment should not bar the refund claim if filed within the time limit, citing relevant case laws supporting refund allowance even without provisional assessment in cases of price revision. On the other hand, the SDR relied on a Bombay High Court decision emphasizing the need to challenge self-assessment for refund claims based on self-removal procedure.

3. The Tribunal analyzed the submissions and found the cited case laws applicable to the present scenario, especially highlighting the relevance of the Premier Explosives Ltd. decision. The Tribunal emphasized that the timing of the refund claim filing within the stipulated period is crucial, irrespective of the finality or provisionality of the assessment. The decision reiterated that the price variation clause in agreements necessitates adjusting duty liabilities accordingly, as seen in previous Tribunal decisions.

4. Regarding the impact of self-assessment on refund claims, the Tribunal differentiated the circumstances in the case at hand from the Bombay High Court decision relied upon by the Revenue. The Tribunal clarified that in cases where goods are cleared under self-assessment based on approved lists, challenging these approvals is necessary for refund claims. As the appellant in this case was found eligible for the refund claim, the impugned order was set aside, and the appeal was allowed with consequential relief granted to the appellant.