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TMI Blog2015 (9) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... ent received by them from the HPCL was only of the duty payable on the final price and not of the duty paid on the provisional price which was higher. If this is so, the bar of unjust enrichment would not apply. Just because the prices were not finalized by the respondents' customers within 3 to 4 months, the assessment cannot be treated as provisional, and, therefore, the limitation period prescribed under section 11B would be applicable for filing of the refund claim. Therefore, this refund claim had been correctly rejected as hit by limitation by the Assistant Commissioner and the Commissioner (Appeals) order holding that the same is not time barred is not correct. - Decided partly in favour of Revenue. - Excise Appeal Nos. E/3000-3001/2005-EX [DB] - Final Order No. 51579-51580/2015 - Dated:- 23-4-2015 - Rakesh Kumar, Member (T) And S. K. Mohanty, Member (J), JJ. For the Petitioner : Shri M SA Negi, DR For the Respondent : Shri Z U Alvi, Adv ORDER Per Rakesh Kumar The facts giving rise to filing of these appeals by the Revenue are in brief as under:- 1.1 The respondents are manufacturers of LPG cylinders which were being cleared by various oil mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e available and which were lower than the provisional prices on which the duty had been paid. The respondent ,therefore, filed 2 refund claims. The refund claim for the period from July 1999 to October 2000 was filed on 28.08.2001 and the refund claim for the period from 10.04.2001 to 21.05.2001 was filed on 16.04.2002. In both the cases, the Assistant Commissioner by two separate orders rejected the quantum of refund claim which was beyond the limitation period of one year from the relevant date. Accordingly, in respect of the first refund claim for the period from July 1999 to October 2000, the refund claim of ₹ 12,67,122/- was rejected and in respect of the second refund claim for the period from 10.04.2001 to 21.05.2001, the claim of ₹ 3,93,783/- was rejected as time barred. 1.2 The respondent filed appeals to Commissioner (Appeals) against these orders and the Commissioner (Appeals) vide Order in appeal dated 31.03.2004, set aside the Assistant Commissioner's order and allowed the appeal. The Commissioner (Appeals) in his order held that the refund claim are neither hit by limitation nor are hit by the bar of unjust-enrichment. 1.3 The Revenue filed an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of disputes there was no specific order for provisional assessment, that in terms of Apex Court's judgment in the case of Metal Forgings vs. Union of India reported in 2002 (146) ELT 241 (SC) (para 12) to establish that the clearances were made on provisional assessment basis there should be, first of all, an order under Rule 9 B of the Central Excise Rules, 1944 and also the material to show that the goods were cleared on provisional assessment basis and the payment of duty was also made on the said provisional basis, that same view has been taken by Hon'ble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd. vs. CESTAT, Mumbai reported in 2010 (259) 360 (Bom.), wherein while examining the question as to whether time limit for filing refund under section 11B of the Central Excise Act would be applicable when the price at which the goods had been supplied by an assessee to its customers was provisional and the duty had been paid on self-assessment basis, Hon'ble Court held that if the procedure for provisional assessment was not followed for the impugned clearances and the records do not indicate that the clearances were affected on provisional basis, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not apply to the situation where the final prices were not available within 3 to 4 months and that in such cases the assessments would have to be treated as provisional. Shri Alvi also pleaded that B-13 General Bond earlier executed in March, 1995 had been discharged only on 30th May, 2002 and that bond was in existence during the period of dispute. He also pleaded that the delay in finalization of the supply price was only on account of delay on the part of the oil marketing companies to whom the LPG Cylinders were being supplied and, therefore, in such cases, the assessments have to be treated as provisional, even if, there was no specific provisional assessment order for those period. With regard to the question of unjust-enrichment, Shri Alvi reiterated the findings of the Commissioner (Appeals) in para 3 (iv) of the impugned order and also pleaded that the Order-in-Original itself states that there is no unjust enrichment. Shri Alvi pleaded that though the respondent had cleared the goods on payment of duty at higher price on provisional basis, subsequently when the prices were finalized and the final prices were lower than the provisional prices, they received the paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price and not of the duty paid on the provisional price which was higher. If this is so, the bar of unjust enrichment would not apply and such a situation the Tribunal judgment in the case of Sangam Processors Ltd. (supra) would not be applicable. In the present case, in our view, it is the judgment of the Tribunal in the case of CCE, Jaipur vs. Universal Cylinder reported in 2004 (175) ELT 202 (Tri.-Del.) which would be applicable and this judgment has been affirmed by the Apex Court by judgment reported in 2005 (179) ELT A 41 (SC). In the case of Universal Cylinders initially LPG Cylinders had been cleared to oil marketing companies at a provisional price on payment of duty on that price and subsequently final prices fixed were lower than the provisional price and the excess price including excess duty had been adjusted from the subsequent supplies made by the assesses and in these circumstances, it has been held by the Tribunal that the bar of unjust enrichment would not apply. In view of this, so far as this refund claim is concerned, the bar of unjust enrichment would not apply and as such there is no infirmity in the Commissioner (Appeals) order. 8. Coming to the second c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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