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TMI Blog2014 (5) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... om the provisional price. Any arrangement between the parties in relation to the price of the goods cannot override the statutory provision. Once the law requires that duty should be paid based on the price disclosed in the invoice issued at the time of clearance of the goods, mere subsequent reduction in price on the basis of some understanding arrived at between the parties cannot affect the duty liability in terms of the price disclosed in the invoice. Only exception to this is in a case where the manufacturer collects additional price by issuing a supplementary invoice. There is no provision under the law for issuance of supplementary invoices reducing the price - Following decision of Mauria Udyog Ltd. Vs. Commissioner of Central Excise [2006 (8) TMI 49 - HIGH COURT OF PUNJAB & HARYANA (CHANDIGARH)] and Commissioner of Central Excise, Raipur Vs. Blastech (India) Pvt. Ltd. [2011 (8) TMI 873 - CESTAT, DELHI] - Therefore, refund claims of the appellants are not maintainable - Decided against assessee. - Appeal No. : E/568,569/2007 SM - ORDER No. A/10947-10948/2014 - Dated:- 9-5-2014 - Mr. H.K. Thakur, J. For the Appellant : Shri Rahul Gajeria (Adv.) For the Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of non-observance of the provisions of Rule 7 of the Central Excise Rules, 2002 relating to provisional assessment. On appeal by the appellant, the Commissioner (Appeals), vide her impugned Orders-in-Appeal, upheld the order of the adjudicating authority. 3. Shri Rahul Gajera, Ld. Advocate for the appellant, argued as follows: (i) that the goods were being cleared by the appellant on provisional prices and the same was in the knowledge of the Department. That since in the past there had been upward revision of prices of goods with retrospective effect and the appellant had been paying differential duty suo moto on such additional considerations so received by raising supplementary invoices under intimation to the Department. In this process, the buyer used to take CENVAT credit on the strength of supplementary invoices. The Department did not raise any objection to the practice in vogue. This was for the first time that there had been a downward revision of the prices during the financial year 2005-06 necessitating filing of refund of excess paid duty. (ii) The refund claim has been rejected by the Revenue on two grounds. One is the ratio of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment being final or provisional is not relevant so far the refund claim is filed within limitation period. In this context he cited the following case law: (a) Commissioner of Customs Central Excise Vs. Premier Explosives Limited, reported as [2008 (226) ELT 729 (Tri. Bang.)]; and (b) K.J.V. Alloys Conductors P. Ltd. Vs. Commissioner of Central Excise, Hyderabad [2012 (275) ELT 90 (Tri. Bang.). (v) That appellant s case is squarely covered by the following case laws: (a) Nagarjuna Construction Co. Limited Vs. C.C.E. Hyderabad- [2006 (74) RLT 713 (CESTAT- Ban.) Equivalent 2006 (199) ELT 155 (Tri. Bang.)]; and (b) Commissioner of Central Excise, Ghaziabad Vs. Mahavir Cylinders - [2012 (284) ELT 54 (Tri. Del.)]. 4. On the other hand Shri Alok Shrivastav, Ld. AR for the revenue, argued that there was no concept of provisional price under the central excise law. He contended that the appellant could not claim refund of duty on the grounds of subsequent reduction in Price in view of the following case laws: (a) MRF Ltd. Vs. Collector of Central Excise, Madras - [1997 (92) ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. This is the view which was taken by the Tribunal in the case of Indo Hacks Ltd. v. Collector of Central Excise, Hyderabad - 1986 (25) E.L.T. 69 (Tribunal) and it seems to us that the Tribunal s view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the Tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant-company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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