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TMI Blog2007 (8) TMI 206X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise (Appeals) Nagpur by which the appeals filed against orders passed by the Assistant Commissioner, Nagpur in favour of respondent no.1 in all these appeals were dismissed. 4. Respondent no.1 in all these appeals entered into different agreements with M/s. Coal India Limited for supply of Explosives for the period 1.4.2000 to 31.3.2001. The price of explosives was fixed by an agreement entered into between the parties. Initially, price of explosives to be supplied beginning from 1.4.2001 onwards was not fixed and as such at the higher rates prevailing during the year 2000-2001, Respondent no.1 cleared the goods. Thereafter respondent no.1 entered into agreements with M/s. Coal India Ltd. by which the rates were reduced. Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hangde, learned Senior Counsel who argued on behalf of assessees submitted that no substantial question of law is involved in the present appeals and,therefore, the appeals deserves to be dismissed in limine. He further submitted that the judgments relied upon by Mr. Mirza, learned counsel on behalf of the revenue are clearly not attracted since the facts in the said judgments are clearly distinguishable. He further submitted that in all the appeals although there was no provisional assessment, the assessee paid duties at higher rates on the basis of tentative price in terms of the agreement which was applicable for the period 1.4.2000 to 31.3.2001 and pursuant to subsequent agreement entered between assessee and M/s. Coal India Ltd., the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustan Petroleum Corporation at the provisional price in the purchase order and paid duties at 16%. The said price was reduced from Rs.637.17 per cylinder to Rs.476.62 by the HPC vide their letter dated 10.8.2001 and they adjusted the excess price including the duty from the subsequent supplies made by the respondents. In this fact situation, the Tribunal held that there was no question of unjust enrichment and up-held the order passed by the Commissioner granting refund thereby reversing the order passed by adjudicating authority. The Apex Court by order dated 4.4.2004 [2005 (179) E.L.T. A41 (S.C)] dismissed the Special Leave Petition up-holding the order passed by the Tribunal. In the case of Telephone Cables Ltd.(supra) the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee claimed refund of excise duty to that extent. The facts in this case are clearly distinguishable from the facts in the above appeals and, therefore, in our considered opinion the ratio laid down in the case of MRF Ltd. does not advance the case of the revenue. 10. In the case of Metal Forgings (supra) the Apex Court set aside the order of the Tribunal which had granted refund on the ground that the goods were cleared on provisional basis which was factually incorrect. The Apex Court held that there was no material to establish the fact that either there was a provisional classification or there was an order made under Rule 9B of the Rules. The ratio laid down in this case does not advance the case of the revenue. 11. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g refund. Section 11-B of the Central Excise Act, 1944 also provides for refund of duty in any other case. Moreover, the fact that the price of the goods supplied by the assessees to M/s Coal India Limited was fixed by valid agreement entered into between the assessees and M/s Coal India Limited after 31.3.20001 has not been disputed by the revenue. 13. In this view of the matter, in our considered opinion, the impugned orders passed by all three authorities under Central Excise Act cannot be said to be illegal or contrary to law. In our opinion, the impugned orders have been passed following correct legal principles governing refund of duty. In our opinion, no substantial question of law is involved in all these appeals as required under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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