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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 ..... o 150 MVA on ex-factory price of Rs. 4,52,99,813/-. The goods were cleared upon payment of duty on ex-factory price as per contract. Subsequently, TNEB revised the price and reduced to Rs. 4,21,30,638/-. Therefore, there is excess payment of duty of Rs. 5,22,283/- as per price evaluation. The appellant filed refund claim of Rs. 5,22,283/-. A Show Cause notice dtd 18.8.2008 was issued proposing 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 Rs. 4,52,99,813/- and the price was reduced to Rs. 4,21,30,638/- after the clearance of the goods and therefore refund is not permissible. The Adjudicating Authority rejected the refund claim ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant had not opted provisional assessment under Section 9B of the Central Excise Act and therefore, they are not eligible for refund. He further submits that it is clearly evident from the statutory provision viz., Section 4(i) of the Act that duty is payable on the price at the time of place of removal. Any reduction of price after clearance of goods cannot effect the payment of duty 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 Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said letter that the appellants were requested to despatch the transformer to the sub-station site in co-ordination with the concerned Superintendent Engineer 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 Rs. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of MRF Ltd. But later decisions of the Tribunal in similar matters is to the effect that refund can be granted in such cases as may be seen from the decision in the case of Universal Cylinders (supra) which was affirmed by the Apex Court as reported at 2005(179)ELT.A41-SC. So this issue is already decided in favour of the appellant to the extent it relates to claim 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 Advoc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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