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2008 (8) TMI 284 - AT - Central ExciseVariation of price - Since the appellants had paid duty on a higher value they filed refund claims for the excess duty paid - reason for rejecting the claim by the Original Authority is that the appellant had not requested for any provisional assessment - Wherever there is a price variation clause in an agreement the assessments should be considered as provisional therefore hold that the appellants are entitled for the refund - As the appellants receive the lesser price after the price is finalized there is no question of unjust enrichment
Issues:
Refund claim rejection due to lack of provisional assessment. Analysis: The appellant cleared electrical transformers to customers with duty paid, but prices were later reduced based on IEMMA Circulars/Purchase Orders, leading to refund claims for excess duty paid. The lower authority rejected the claim citing no request for provisional assessment under Section 11B. The Commissioner (A) upheld this decision. The appellant approached the Tribunal, arguing entitlement to refund based on price revisions. The Tribunal considered previous cases like Rajasthan Electronics & Instruments Ltd. and Keltch Energies Ltd., distinguishing the MRF Ltd. case. The departmental representative maintained the refund claim's time bar due to no provisional assessment. Upon review, the Tribunal noted the appellant paid duty at a higher value upon clearance, with final prices subject to change based on agreements with buyers. Price revisions led to higher duty payments, with the appellant usually facing upward price revisions, paying differential duty accordingly. The Tribunal referenced the Keltch Energies case, stating that agreements with price variation clauses should be considered provisional assessments. Following this precedent, the Tribunal ruled in favor of the appellant, allowing the refund claim without unjust enrichment concerns due to receiving lower prices post-finalization. The Tribunal's decision favored the appellant, granting the refund claim and providing consequential relief.
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