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TMI Blog2010 (3) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of their regular business operations, received an order No. ISP/ICB/TG/350-II, dated 29-8-97 from Narmada Valley Development Authority (NVDA), Bhopal for supply of certain equipment for power generation and the contract for supply of equipment owing to long delivery cycle had a price variation clause. The equipment was supplied to NVDA under two invoices No. MSBP 0393015 dated 4-5-1999 and MSBP 03903048 dated 18-5-99 at provisional price of Rs. 1,10,00,000/- on payment of Central Excise duty amounting to Rs. 17,60,000/- each. Subsequently the appellant raised two supplementary invoices bearing No. 30103 and 30104 both dated 26/27-5-1999, to NVDA whereby additional differential price and differential duty was billed. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be presented before the competent authority at the time of finalisation of RT 12 assessment. In this letter Range Officer was also directed to consider the appellant's claim for adjustment of the excess duty paid at the time of finalisation of their RT 12 return for the relevant period. The provisional assessments were finalised by the Asstt. Commissioner vide order dated 22-12-2004. But this order did not consider the question of above mentioned refund of duty paid twice in respect of supplies to NVDA. Since the order for provisional assessment finalisation was silent about the refund claim, the appellant filed the refund claim on 21-12-2005. The refund claim, however, was rejected by the Asstt. Commissioner vide Order-in Original No. 21/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, ld. Counsel for the appellant pleaded that the Department does not dispute that there was double payment of duty on the same amount of price escalation, that initially when the refund claim had been filed in May, 2002 the same was returned by the Asstt. Commissioner in August 2002 on the ground that the assessments in respect of the RT-12 returns for the relevant period are pending finalization and, hence, the refund claim is premature and that the same should be filed at the time of finalisation of RT-12 assessment for the relevant period, that the Range Superintendent was also directed to consider the claim for adjustment of excess duty at the time of finalisation of the RT 12 assessment for the relevant period, that inspite of this a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er is not correct. 2.2 Shri I. Baig, the ld. SDR defended the impugned order by reiterating the Commissioner (Appeals)'s findings in the impugned order and emphasised that as observed by the Commissioner (Appeals), since initial refund claim had been filed in May, 2002 while duty whose refund is sought had been paid in May, 1999, the same was time barred. He also emphasised that the issue of double payment of duty on the same amount of price escalation and its refund was not pleaded by the appellant before the Asstt. Commissioner at the time of finalisation of the provisional assessments and the provisional assessment was on the issue of classification and price escalation etc. and that in view of this the refund claim has been rightly rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim pertains to RT 12 returns which have been provisionally assessed. This letter also directed the Range Supdt. to consider the appellant's claim for adjustment of excess duty at the time of finalisation of the relevant RT 12 returns. The provisional assessments were filed before the Asstt. Commissioner, vide Order in Original dated 22-12-2004 and from para 4 of the finalisation order, it is clear that the assessment of duty in respect of supply to NVDA's against NVDA purchase order No. ISP/ICB/TG/350-II was also on provisional basis and in respect of these supplies, Asst. Commissioner has held that there was short payment of duty to the tune of Rs. 9.33 Lakhs. On appeal the Commissioner (Appeals) against the Asst. Commissioner's order da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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