9911796707
TMI Blog2009 (12) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... f raw materials should be the rate prevalent during the month just preceding the month of inspection by the Railways. Terming that they have erroneously calculated the price variation bills by adopting the rate of RINL/Bangalore for spring steel for the month of April, 2005 and May, 2005 and paid excess duty, the appellants claimed vide their letter dated 13-11-2006/22-1-2007 a refund of Rs. 2,28,000/- Central Excise duty. A show cause notice bearing No. V/73/18/3/2007-Refunds dated 20-4-2007 was issued to the appellants requiring them to show cause as to why the refund claim for Refund of Rs. 2,28,009/- should not be rejected as the claim is barred by limitation of time in terms of Section 11B of Central Excise Act, 1944. The show cause no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submissions made at length by both sides and perused the records. The issue to be determined in this case is whether the refund is time-barred in terms of Section 11B of the Central Excise Act, 1944. Appellant pleaded that there is existence of price variation clause in the agreement with railways and due to that assessments have to be treated as provisional and limitation as envisaged under Section 11B would not be applicable. 7. We find that for the purpose of assessing the goods provisionally there were provisions of Rule 7 of Central Excise Rules, 2004. It is on record that the assessee/appellant had not sought for provisional assessment of the goods under Rule 7. If that be so, because of existence of price variation clause the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional basis and payment of duty was also made on the basis of said provisional classification." Accordingly, the assessment cannot be deemed to be provisional merely because the contract entered into between the assessee and their customers contain prices variation clause. Similar views has been held by the Appellate Tribunal in the case of M/s. Rajasthan Cylinders and Container Ltd. v. CCE, Jaipur, Final Order Nos. A/612-613/03-NB(C), dated 31-10-2003, [2004 (166) E.L.T. 474 (T)] relied upon by the learned Senior Departmental Representative. As the refund claim was initially filed on 31-1-2001, the refund claim for the period July, 1999 to 31-1-2000 was beyond the period of one year stipulated in Section 11B of the Central Excise Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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