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TMI Blog2022 (3) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... lying as on date with dealers reduced the price and issued credit note and refund the difference along with duty by way of cheques. The only controversy is that whether the subsequent reduction in the price by the appellant and refund thereof proportionate duty attributable to reduced prices is refundable or not. As issue is squarely covered by the decision of PRAG INDUSTRIES (INDIA) PVT. LTD. VERSUS COMMR. OF C. EX. S.T., LUCKNOW [ 2019 (4) TMI 1835 - CESTAT ALLAHABAD ], therefore, as payments were made in accordance with the reduced price subsequently paid by the appellant, in that circumstances the appellant is entitled to claim refund of the excess duty paid by them. In such circumstances, there is no requirement for opting provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s passed on in the form of credit note to the dealers and amount of credit notes was paid by appellant to the dealers through cheques. Therefore, in respect of the vehicles lying in stock with the various dealers dated 8.12.2008, the prices were retrospectively reduced and the differential value along with corresponding duty thereon were reimbursed to the dealers through credit notes. In view of this, the appellant filed a refund claim of excise duty paid on the vehicles lying in stock with the dealer as on 8.12.2008. Consequent to the application of the refund, a show cause notice dated 5.6.2009 was issued to the appellant proposing to reject the refund claim on the ground that goods were sold for delivery at the time and place of removal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uto Ltd. 2010 (250) ELT (S.C.). He also placed reliance on the decision of CCE Nagpur v Oriental Explosive (P) Ltd. 2008 (222) ELT 205 (Bom.), Prag Industries (India) Pvt. Ltd. v CCE ST Lucknow, 2019 (369) ELT 1389 (Tri-All), Utkal Polyweave Industries Pvt. Ltd. v CCE Bhubaneswar, 2001 (136) ELT 818 (Tri-Kolkata). 4. He further submitted that the provisional assessment is not applicable in the facts of the case as appellant has no knowledge of the rate of duty on impugned goods would reduce subsequently from 24% to 20%. 5. On the other hand, learned AR supported the impugned order and submitted that it is a case where no provisional assessment was sought by the appellant and paid the duty applicable at the time of clearance of the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt accepted the lower rate and the delivery period was extended from 31st July, 2014 to 31st December, 2014. The Railways made payment of ₹ 12,25,621/- including Central Excise duty amounting to ₹ 1,33,488/- by payment Advise dated 16th December, 2014. The appellant thereafter claimed refund of ₹ 72,306/- which was the excess duty paid. The Adjudicating Authority noticed that there was no unjust enrichment and therefore sanctioned the refund claim. The Revenue feeling aggrieved filed an appeal. The Commissioner (Appeals) allowed the appeal holding that provisional assessment has not been accepted by the appellant; price variation clause was not applicable on goods supplied by Invoice No. 92 dated 12th August, 2014 and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 6 . The appellant accepted the lower rate by letter dated 1st September, 2014. Payment was made in accordance with the lower rates. It is therefore clear that 3,000 pieces were supplied at a lower price. The appellant therefore is clearly entitled to the refund of excess duty. There is no requirement of provisional assessment nor is it a case of unjust enrichment. It is therefore not possible to sustain the order passed by the Commissioner (Appeals). It is accordingly set aside. The appellant shall be entitled to refund of ₹ 72,306/- with interest at the applicable rate. 8. As issue is squarely covered by the decision of the Prag Industries Pvt. Ltd. (Supra), therefore, we hold that as payments were made in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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