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TMI Blog2019 (9) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the completion of the period; and were adopting this costing value for future clearances. The appellants submitted to the authorities that the assessments of M/s CEAT were provisional; they were not in a position to indicate value at the time of clearances and that appellant's clearances to M/s CEAT also be provisionally assessed. The department alleges that they should gave adopted the same retrospectively and thus continuously undervalued their clearances from 2003. The department issued a Show Cause Notice dated 14.05.2007, covering a period 01.04.2003 to 30.06.2006. Additional Commissioner, vide Order-in-Original No. 12/2007 dated 04.12.2007, confirmed a demand of Rs. 41, 35,951. On an appeal filed by the appellants, Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure as per Board Circular No. 619/10/2002-CX dated 19.02.2002; however, they should have followed the same from the actual date of application of the price list and not prospectively; the circular was in respect of sale of music CDs and holds that as net sales value and total royalty payable for the current year will not be available with the music company, duty should be determined on the basis of figures for the previous year; they have paid duty correctly as the circular as the exact values were given by their principals at a later date only. Due to this method, they have paid excess duty of Rs. 31, 40,594 in respect of clearances to M/s Good Year while they short paid Rs. 8, 17,860 in respect of M/s CEAT. Even after adjusting, an amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable retrospectively resulting in under valuation; in one of the costings received on 27.09.2005 the effective date is 01.09.2005, therefore the assessee should have retrospectively applied said rates with effect from 01.09.2005. However, the said costing is applied with effect from 01.10.2005. The appellant's contention, that in some cases where the price shall come down, there would be excess payment and in cases where price goes up, there would be short payment of duty, is not acceptable; law does not provide for such adjustment. He submits that assessable value not liable to revision after clearance of goods from factory; assessee had paid excise duty on the transaction value as declared in the invoice at the time of sale/clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of MRF 1997 (92) E.L.T. 309 (S.C.) held that fluctuation in prices subsequent to clearances of goods not to effect liability to the Excise duty. Apex Court further, in the case of SAIL CCE , Raipur 2015 (326) E.L.T. 450 (S.C.) held that the principle laid down in MRF Ltd. would continue to prevail. (iii). Tribunal in the case of Finolex Cables Ltd Vs CCE, Pune-I 2011 (270) ELT 81 (Tn. - Mumbai) held that 5.2. In the present case it is a clear and simple case of price reduction after clearance of goods from the factory. It is not a case of any discount being given to the customers, which was made known to all the customers beforehand. As per Rule 7 of the Valuation Rules, 2000 as it stood at the relevant point, of time, when the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir suppliers either M/s CEAT & M/s Goodyear themselves are under provisional assessment and would be intimating them the actual prices after the finalization of their accounts. Therefore, they started the practice of taking that value as a base value for future consignments. They further submit that in the bargain, they end up paying more at times and paying less at times and therefore, no demand can be made out of the practice as they are eligible for a net refund in fact. They sought to rely on a Circular issued by CBEC No. 619/10/2002 dated 19.02.2002. On going through the Circular, it is seen that the Circular is in respect of Music CD manufacture who are required to include the royalty payable on the quantum of sales. 5. Vide above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... normal period. We are of the opinion that as the assessments were not provisional, the Department was not barred from issuing a demand for normal period. Consequentially, we hold that the Circular is not applicable to the instant case and the demand is sustainable for the normal period. 7. The appellants have also pleaded that there are instances where the appellants have paid duty in excess and in some cases, the duty was short paid. They request that Department should adjust the duty paid and payable. We are afraid, as submitted by the Learned AR for the Department, there is no such provision under the scheme of Central Excise Act, 1944 and Rules made thereunder. It was open to the appellant to claim refund by following the due process o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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