2012 (8) TMI 140 - AT - Central Excise

Refund - manufacture of P.C. poles Held that - Assessments were not provisional and the respondents cleared the PC poles on payment of appropriate duty. Subsequent to the clearances, Maharashtra State Electricity Board reduced the price as per the terms of the contract refund is not allowed

Summary

Issues:
Appeal against refund allowed by Commissioner (Appeals) for reduction in price after clearance of goods.

Analysis:
The case involved an appeal by the Revenue against the refund of duty allowed by the Commissioner (Appeals) due to a reduction in price of goods supplied to Maharashtra State Electricity Board after clearance. The Revenue contended that since the assessments were not provisional and the goods were cleared on payment of appropriate duty, any subsequent price reduction did not entitle the respondents to a refund. The Revenue relied on a judgment of the Punjab & Haryana High Court and a subsequent Supreme Court decision, which held that in the absence of provisional clearance, no refund could be claimed on price reduction post-clearance.

The Tribunal noted that the clearance of goods was not on a provisional basis, as required to claim a refund based on price reduction. The Tribunal emphasized the necessity of an order under Rule 9B for provisional clearance, which was absent in this case. The absence of provisional classification or an order under Rule 9B meant that the clearance was final, precluding the possibility of refund based on subsequent price reduction. The Tribunal rejected the argument that the order of the Assistant Collector was provisional, stating that the Revenue could not avoid the limitation prescribed under Section 11A in the absence of provisional clearance.

The Tribunal dismissed the contention that a Larger Bench should have been constituted, as the issue was conclusively settled by the Supreme Court's judgment. It found no legal question requiring referral to the Court. Ultimately, the Tribunal upheld the appeal, as the assessments were not provisional, aligning with the legal precedent cited by the Revenue. The appeal was allowed, and the Cross Objections supporting the impugned order were also disposed of accordingly.