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TMI Blog2005 (12) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 and C.No. III (20)RC/STA/2276/04, both dated 29-07-2005, of the Commissioner, Central Excise, Bhopal, in the case of M/s. Birla Ericsson Optical Limited, Rewa (here-in-after referred to as the respondents). 2. The respondents are engaged in the manufacture of optical fibres. They had entered into contracts with M/s. RIL, M/s. Bharati Telenet Limited and M/s. BSNL for supply of optical fibres to them. The prices of goods, at the time of the signing of the contracts, were provisional and were subject to price variation clauses. The respondents cleared the goods on the provisional prices of goods. Duty was also paid on theses provisional prices. Simultaneously, at the behest of the respondents, the assessments were also made provisional u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. A182]. It has been prayed that the impugned orders be set aside. The amounts of refunds allowed should be recovered from the respondents and credited to the Consumer Welfare Fund. 4. Nobody appeared for the Department in spite of specific notice for appearance. Shri D.C. Das, Deputy Manager (Excise), appeared for the personal hearing for the respondents and urged that in view of the reasons stated in the rejoinder, the impugned orders may be upheld as they have not passed on the element of higher duty to the buyers of goods. 5. I have gone through the grounds of review, the rejoinder filed by the respondent as well as the oral submissions made by the respondents at the time of hearing. The short question for determination in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to substantiate their point. The documents and charts relating to these were examined and it is seen that the amounts received by the respondents are the prices, which were finalised subsequently. Therefore, what has been passed on as the element of excise duty to their customer is the duty payable on the final price and not on the initial provisional price. Thus the amounts of refunds which represented the excess duties paid on provisional price had not been passed on by the respondents to their customers. Therefore, on facts duty has not been passed on. On this count, both the Review Applications need to be rejected. 7. The Commissioner of Central Excise, Bhopal, while reviewing the impugned orders, has relied heavily upon the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to order for final assessment under sub-rule (3), subject to Rule (6) . . A refund under Rule 7 will arise where an assessee has initially paid duty on the provisional price (or at provisional rate), which as a result of price variation clause gets reduced subsequently. In other words, the goods sold at the time of clearance were at a higher price (or at a higher rate of duty). The original consideration received by the assessee would be the higher price (or at a higher rate of duty). This would also mean higher duty of excise received from the customers. When as a result of variation clause the price (or the rate of duty) is finalised, which results in a lesser price (or a lesser rate of duty), the assessee would then have to return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Principles of Statutory Interpretation by Justice GP Singh, Ninth edition]. In Corporation of Calcutta v. Liberty Cinema [AIR 1965 SC 1107], the Supreme Court observed that a statute has to read so as to make it valid and, if possible, an interpretation leading to a contrary position should be avoided; it has to be construed ut res magis valeat quam pareat - Interpretation of Statutes by Vepa P. Sarathi, 2nd Edition, page 68. A construction which would leave without effect any part of the language of a statute will normally be rejected - Felix v. Thomas [1967] 1 A.C. 292- Maxwell on The Interpretation of Statutes, 12th Edition, Page 36. 10. Thus, if an interpretation is placed, in cases of provisional assessments, that if excess duty co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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