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TMI Blog2017 (11) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... 659-22660/2017 - Dated:- 30-10-2017 - Shri S.S Garg, Judicial Member Shri Raghavendra B., Advocate For the Appellant Dr. J. Harish, Dy. Commissioner(AR) For the Respondent ORDER PER: S.S. GARG The appellant has filed these two appeals against two impugned orders dt. 29/10/2014 and dt. 23/06/2015 rejecting the refund claims of the appellant. Since the issue involved in both the appeals is identical, they are disposed of by this order. The details of both the appeals are given below:- Appeal No. Period of dispute Date of filing of refund application OIA No. dt. Amount of refund claimed E/20324/2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As such, they have submitted that they are entitled to get the refund of the duty paid in excess of the duty on the transaction value. 3. Heard both the parties and perused records. 4.1. Learned counsel for the appellant submitted that the impugned orders rejecting the refund claims of duty paid on account of reduction in price consequent to clearance of goods by virtue of price escalation clause in agreement are not sustainable as the same are passed without considering the facts and the law. He further submitted that the prices for supply of goods are finalised only after supply of goods and accordingly the appellant is paying duty in case of upward revision of price and claiming refund in case of downward revision of price. He fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellants are not entitled for refund as they have not resorted to provisional assessment. He further submitted that this issue has been considered by the Hon ble Supreme Court in the case of Metal Forgings Vs. UOI [2002(146) ELT 241 (SC )] wherein it has been held as under:- Provisional assessment - Classification dispute - Order classifying goods not to be treated provisional merely because appeal or other proceedings questioning correctness of said order pending - Clearances made during pendency of appeal/revision not to be treated as provisional - To establish that clearances were on provisional basis an order under Rule 9B of erstwhile Central Excise Rules, 1944 and clearances/payment of duty on provisional basis is essenti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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