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TMI Blog2016 (11) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon the order of the Hon’ble Supreme Court in the case of Mauria Udyog Ltd. v. Commissioner - [2007 (10) TMI 619 - SUPREME COURT] wherein the Hon’ble Supreme Court had dismissed the Petition for Special Leave to Appeal against the judgement and order dated 22.08.2006 of the Punjab and Haryana High Court. Held that: - there are conflicting judgements of the Tribunal on this issue. However, considering that the judgements in the case of Tesla Transformers Ltd. and P.C. Pole Factory, which are on identical facts are based on the judgement of the Hon’ble Punjab & Haryana in the case of Mauria Udyog which has been upheld by the Hon’ble Supreme Court. It is categorically mentioned in the latter that the issue is squarely covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Ltd., raised debit note dated 26.06.2009 on the appellant and the appellant in response, raised credit note dated 26.09.2009 on M/s. Spicer India Ltd., towards difference in price, CST and excise duty. The reduction in price has apparently resulted in excess payment of duty for which the appellant filed refund claim on 25.02.2010. The refund claim was examined by the Asst. Commissioner and was rejected. The appeal filed before the Commissioner (Appeals) against the order of Asst. Commissioner also did not succeed mainly on the ground that the amendment dated 25.02.2009 was with retrospective effect and Section 4 does not envisage redetermination of assessable value after clearance of the goods from the factory. It was held that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Learned D.R. appearing for the Revenue argued that in such case where price variation was anticipated, the appellant should have sought provisional assessment as provided in law. He stated that the issue is no longer res integra and has been settled in favour of the Revenue by following judgements of the Tribunal:- (a) Commissioner of Central Excise v. Tesla Transormers Ltd. - 2013 (293) ELT 252 (Tri. - Del.) (b) Commissioner of Central Excise v. P.C. Pole Factory - 2013 (295) ELT 269 (Tri. - Mum). He further stated that both the judgements had relied upon the order of the Hon ble Supreme Court in the case of Mauria Udyog Ltd. v. Commissioner - 2008 (221) ELT A120 (S.C.) wherein the Hon ble Supreme Court had dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply. 7. In the present case, it is not shown that clearance of the goods was made o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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