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TMI Blog2015 (11) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... en decided and the same was reduced only subsequently, the judgment of Apex Court in the case of MRF Limited Vs. CCE Madras [1997 (3) TMI 104 - SUPREME COURT OF INDIA] would be applicable and the respondent would not have eligible for refund. For ascertaining this factual position, the matter has to be remanded - while the Commissioner (appeals) s order in respect of the refund claims of ₹ 26,702/- and 1701/- is upheld his order in respect of the refund claims of ₹ 1,48,253 and 87,479/- is set aside and the matter is remanded to the original adjudicating authority for de-novo adjudication - Decided party in favour of Revenue. - Appeal No. E/608/2005-EX [DB] - Final Order No. 51611/2015 - Dated:- 22-4-2015 - Shri Rakesh Kumar, Member (Technical) And Shri S.K.Mohanty, Member (Judicial) For the Petitioner : Shri M.S. Negi, DR For the Respondent : Shri Harishankar, Senior Advocate, Shri Sunil and Ms. Privadeep, Advocates ORDER Per: Rakesh Kumar The facts leading to filing of this appeal by the Revenue are, in brief, as under: 1.1 The respondents are manufacturers of optical fibre cables for telecommunication. They cleared two drums of optical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer. Accordingly, the respondent submitted the refund claim of ₹ 87,479/- to the Assistant Commissioner. 1.3 All the above four refund claims had been submitted simultaneously under the covers of one refund application to the Assistant Commissioner. 1.4 The above refund claims were rejected by the Assistant Commissioner. However, on appeal being filed to Commissioner (appeals), the Assistant Commissioners order was reversed by the Commissioner of Central Excise (appeals). 1.5 Against this order of the Commissioner (appeals) this appeal has been filed by the Revenue. 1.6 The Revenue in these appeals mainly relies upon the Apex Courts judgment in the case of MRF Limited Vs. CCE Madras reported in 1997 (92) ELT 309 SC wherein it has been held that fluctuation in prices subsequent to the clearance of the goods does not affect the liability to excise duty and that reduction in price subsequent to the clearance of goods on payment duty for whatever reason is not to affect liability for payment of excise duty. 2. Heard both the sides. 3. Shri M.S. Negi, ld. DR, assailed the impugned order by reiterating the grounds of appeal and pleaded that as regards the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m insurance company has been claimed; that the consignment of two drums was subsequently cleared under invoice no. 1815 dated 31/3/2003 on payment of duty and as such the duty in respect of the second drum was paid again, that from these facts it is clear that in respect of the 2nd drum duty has been paid twice and no reimbursement of duty paid on earlier occasion had been claimed from the insurance company; that Rule 16 of the Central Excise Rule, 2002 is not applicable as the goods had been damaged in the course of the loading in the factory; that in view of this, refund claim has been wrongly rejected by Assistant the Commissioner and as such there is not infirmity of mistake in the Commissioner (appeals) order allowing this refund claim; that as regards the refund claim for amount of ₹ 1,48,253/- in respect of the goods cleared under invoice no. 71 dated 25/4/2003, though the invoice as well as the purchase order mention the rate for the goods as ₹ 1,36,500/- per K.M., this rate mentioned was incorrect, as these goods had been supplied to M/s. Bharti Touch Tell and in terms of the rate contract with M/s. Bharti Touch Tell these goods were to be supplied at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d under invoice no. 1815 dated 31/3/2003, there is no dispute that earlier the consignment of two drums of optical fibre cable was to be cleared under invoice no. 960 dated 25/11/2002 and before clearance, the duty had also been paid. There is no dispute that before clearance of the goods and during the process of loading, one of the drums fell down as a result of which its content got damaged and as a result of this the consignment itself was not despatched and the same was dispatched subsequently under the invoice no. 1815 dated 31/3/2003. There is also no dispute at the time of clearance of the goods under invoice no. 1815 dated 31/3/2003 the duty had been paid once again. From this, it is clear that in respect of the second drum for which the appellant had not claimed any reimbursement from the insurance company the duty had been paid twice. In our view, the provision of Rule 16 of the Central Excise Rule, are not applicable as the goods had been damaged when the same were being loaded in the factory. In view of this, we hold that there is no infirmity in the Commissioner (appeals) order sanctioning the refund of ₹ 26,702/-. 10. As regards, the refund claim of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied during the period of dispute to M/s. Tata Tele Services was decided only subsequently after the goods had been supplied. If the respondents contention that during the period of supply to M/s. Tata Tele Services, the rate for the goods had not been fixed and the same was fixed only subsequently is correct they would be eligible for the refund as the duty had been paid at a higher price and judgment of MRF Limited Vs. CCE Madras would not be applicable. But if prior to the period of supply, the rate at which the goods were to be supplied had been decided and the same was reduced only subsequently, the judgment of Apex Court in the case of MRF Limited Vs. CCE Madras would be applicable and the respondent would not have eligible for refund. For ascertaining this factual position, the matter has to be remanded. 12. In view of the above discussion, while the Commissioner (appeals)s order in respect of the refund claims of ₹ 26,702/- and 1701/- is upheld his order in respect of the refund claims of ₹ 1,48,253 and 87,479/- is set aside and the matter is remanded to the original adjudicating authority for de-novo adjudication strictly in terms of our directions and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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