2004 (9) TMI 287 - AT - Central Excise

Summary

Issues:
Refund claim rejection based on passing of duty incidence to customers; Provisional assessment not requested; Finalization of price after initial provisional price; Applicability of Section 11B of the Central Excise Act.

Analysis:
The appeal was filed against the rejection of a refund claim by M/s. Mauria Udyog Ltd., concerning the excess duty paid on supplies of LPG cylinders to Public Sector Undertakings. The Deputy Commissioner and Commissioner (Appeals) rejected the claim, citing the passing of duty incidence to customers and lack of provisional assessment request. The appellant argued that the price was provisional initially and finalized later, citing precedents like Telephone Cables Ltd. v. CCE, Chandigarh, and Birla Ericsson Opticals Ltd. v. CCE, Bhopal, to support their claim under Section 11B of the Central Excise Act.

The Revenue contended that duty was charged at the enhanced price to customers upon clearance, indicating the passing on of duty incidence. However, the Tribunal noted that the price between the appellant and HPCL was provisional, as evidenced by the purchase order and subsequent finalization of price by HPCL. HPCL confirmed the payment at the finalized rate, supporting the appellant's claim that duty incidence was not passed on to buyers. Relying on precedents and factual evidence, the Tribunal sided with the appellant and allowed the appeal, emphasizing that the duty incidence had not been transferred to customers.

In the final decision, the Tribunal pronounced the operative part of the order on 2-9-2004, highlighting the acceptance of the appeal based on the findings that the duty incidence had not been passed on to buyers. The judgment underscores the importance of provisional pricing, finalization of rates, and the application of relevant legal provisions in refund claims related to duty payments on goods supplied to public entities.