2003 (8) TMI 96 - AT - Central Excise

Refund of excise duty - Price variation clause - Limitation - Provisional assessment - HELD THAT - No price list or declaration had been filed by the assessee, nor is it contended by the assessee that the fact of the prices being provisional were brought to the notice of the Department and a request was made for the provisional assessment. Reliance by the Commissioner (Appeals) in the judgment of the Supreme Court in Samrat International v. CCE 1990 (9) TMI 106 - SUPREME COURT is entirely misplaced. Unlike in a situation under consideration by the Supreme Court in the case there was no requirement of final approval of the price list, since such a price list was not required to be filed and, hence no period would exist between the filing of a price list and the finalisation the clearances made during which could be considered provisionally. The reliance by the departmental representative on the judgment of the Supreme Court in Metal Forgings v. UOI, 2002 (11) TMI 90 - SUPREME COURT to say that in the absence of a formal order in Rule 9B there cannot be provisional assessment is sound. These claims would thus be clearly barred by limitation. In respect of the claim which are filed within the period of limitation, the judgment of the Supreme Court in MRF Ltd. v. CCE, 1997 (3) TMI 104 - SUPREME COURT would apply. In that judgment the Court had said that once the assessee has cleared the goods on classification price indicated by the Department at the time of removal of the goods at the factory gate the assessee becomes liable to payment of duty on that day and time and subsequent reduction in price list for whatever reason (emphasis supplied) cannot be a matter of concern to the Central Excise department. Insofar as reliability of payment of excise duty was concerned, and confirmed the decision in the Tribunal in that refund would not be permissible to the assessee on the ground that the price at which it had sold its tyres had subsequently been reduced by an order of the Central Government. We must also note that the certificate of the chartered accountant by itself would not constitute sufficient authority that the duty has been passed on. However, it is not necessary to consider this aspect since we have held it could not be allowed on merits. The appeal is accordingly allowed and the impugned order set aside and the order of the Asstt. Commissioner restored.

Summary

Issues involved:
The issues involved in the judgment are the claim for refund of excise duty, the limitation period for filing the claim, the passing on of duty, and the provisional assessment of duty based on price variation clauses in agreements.

Claim for Refund of Excise Duty:
The assessee, a manufacturer of cylinders, filed a claim for refund of excise duty paid on cylinders supplied to oil companies between specific dates. The claim was based on a price variation clause in the agreement between the buyer and seller.

Limitation Period for Filing Claim:
The notice issued to the assessee proposed dismissal of the claim on the grounds of being filed beyond the limitation period and not showing that the duty incidence had not been passed on. The Asstt. Commissioner held that the claim was time-barred from the date of duty payment, dismissing the claim.

Passing on of Duty:
The Commissioner (Appeals) allowed the claim, stating that the limitation period specified in Section 11B did not apply. The Commissioner found the certificate of a chartered accountant sufficient to show that the duty incidence had not been passed on, setting aside the Asstt. Commissioner's order.

Provisional Assessment:
The departmental representative argued that the assessment was final as the price lists were not provisional and no request was made for provisional assessment. The absence of a provisional pricing element led to the dismissal of the claim based on the principles established in previous judgments.

Judicial Precedents:
The judgment referred to previous cases where provisional assessments were allowed due to pending legal matters or price variation clauses. The absence of such elements in the present case led to the dismissal of the claim based on the lack of provisional pricing information.

Conclusion:
The appeal was allowed, setting aside the Commissioner's decision and restoring the Asstt. Commissioner's order. The judgment emphasized the importance of provisional pricing elements in determining the validity of excise duty refund claims and highlighted the significance of meeting the requirements for provisional assessments.