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TMI Blog2006 (3) TMI 424X X X X Extracts X X X X X X X X Extracts X X X X ..... nly at a lower rate. Duty was reimbursed also only at the lower price. The price approval was also in terms of the tender payment at the time of removal of goods. Thus, no passing on of the higher duty amount ever took place. It is also not necessary that in all cases of price uncertainty, provisional assessment should be resorted to. Assessee can also resort to refund claim. Nor does provisional assessment help. The bar of unjust enrichment covers provisional assessment also. The only relevant question is whether the refund claim is in relation to a tax payment which remains passed on. Whether the original assessment was provisional or final is wholly irrelevant as excess payment of duty can take place under both types of assessments. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the appellant was never paid either price or duty in terms of the original invoice price. Both the payments were made at the revised lower prices. It is being contended that in a case like that, question of unjust enrichment does not arise at all. 3. Learned DR would submit that goods were required to be assessed at the price at the time of its removal and subsequent price revision has no relevance to assessment. He also contends that if the sale price was provisional, the proper thing to do for the assessee was to seek provisional assessment. He also pointed out that though price is stated to be the subsequently approved at a lower rate the payment was at a lesser rate than the purported revised price also. 4. There is merit in the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not participated or participated but he is not agreeable to supply the balance quantity at lower rate received in the subsequent tender, the balance supply against previous order shall not taken and order in resepect thereof shall be cancelled without any financial liability on either side. It is clear from the above that supplies can continue on a regular basis even after the validity period of a price agreement and the mechanism provided is that continued supply over and above the finalized contract will be at the price subsequently approved. In the present case, refund claim has arisen because the appellant originally paid duty at the price of Rs. 743.11 (contract prevalent at the time of removal when supply was made) but price was app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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