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TMI Blog2015 (8) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... ineer and carried out erection work. On perusal of the impugned order, I find that both the authorities below had not noticed that the price variation clause of the agreement. It is also clear from the letter dtd 1.9.2007 of M/s TNEB, where they requested the appellant to clear the transformer in the price of ₹ 4.21 crores and it would cover the earlier consignment against the same contract. Thus, there is no clarity in the facts of the case and both the authorities below failed to appreciate the facts in proper manner. It transpires from the record that there was an agreement between the parties before the clearance of the goods. But it is not clear from the records that the letter dtd 1.9.2007 of M/s TNEB of reduction of the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to reject the refund paid mainly on the ground that the price fixed as per contract dtd 16/12/2006 for supply of 30 Numbers of auto transformers at a price of ₹ 4,52,99,813/- and the price was reduced to ₹ 4,21,30,638/- after the clearance of the goods and therefore refund is not permissible. The Adjudicating Authority rejected the refund claim holding that the value of goods under Section 4(1) of Central Excise Act 1944 has to be arrived at the time of delivery from place of removal. Any subsequent reduction in price would not in any way affect the payment of amount of duty. The refund claimed by the appellant was on reduction of price, subsequent to removal of goods cannot be accepted. The Commissioner (Appeals) rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on ex-factory price. He submits this issue is squarely covered in favour of the Revenue by the decision of Punjab Haryana Hon ble High Court in the case of Mauria Udyog Ltd vs CCE - [2007(207)ELT.31 (P H)]. In that case the Hon ble High Court followed the case of Metal Forgings vs UOI - [2002(146)ELT.241.SC]. He also relied upon the decision of the Tribunal as under: a) Munjal Auto Industries vs CCE ST, Vadodara - 2014.TIOL.778 CESTAT.AHM b) CCE Raipur vs Blastech (India) Pvt Ltd - 2011(274)ELT.210 (Tri. Del) 4. After hearing both the sides and on perusal of the records, I find that the goods were cleared on the basis of agreement with M/s TNEB. For the purpose of proper appreciation of the case, the relevant portion of the agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s TNEB, where they requested the appellant to clear the transformer in the price of ₹ 4.21 crores and it would cover the earlier consignment against the same contract. Thus, there is no clarity in the facts of the case and both the authorities below failed to appreciate the facts in proper manner. 6. The Tribunal in the case of Mahavir Cylinder (supra) held that refund can be granted to an assessee in a situation, where assessment were not made provisionally but the price of excisable goods were revised after clearance of goods as per price variation clause, which was in existence in the contract under which goods were cleared and the buyer adjusted the amount from sales price on the goods subsequently sold. In that case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim which is not time barred. 7. In the present case, it transpires from the record that there was an agreement between the parties before the clearance of the goods. But it is not clear from the records that the letter dtd 1.9.2007 of M/s TNEB of reduction of the price would be applicable for the present clearance of goods, I find force in the submission of the Learned Advocate that the findings of the Commissioner (Appeals) is beyond the scope of adjudication order. The Adjudicating Authority had rejected the refund claim on the ground that the appellant is not eligible the refund on merits. After considering the decision of the Tribunal in the case of Mahavir Cylinders (supra), it is appropriate that the matter should be examined by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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