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TMI Blog2022 (5) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... It is settled that even though the assessee has not opted for provisional assessment but the duty was paid in excess admittedly the assessee s claim of refund within stipulated time of one year, the refund is admissible. The refund cannot be rejected only on the ground that assessee has not opted for provisional assessment - Appeal allowed - decided in favor of appellant. - EXCISE Appeal No. 12706 of 2018-SM - A/10527/2022 - Dated:- 17-5-2022 - MR. RAMESH NAIR, MEMBER (JUDICIAL) None for the Appellant Shri R P Parekh, Superintendent (AR) for the Respondent ORDER When the matter was called none appeared on behalf of the appellant despite notices given on several dates therefore the appeal is taken up for disposal. 2. Shri R P Parekh, learned Superintendent (Authorised Representative) appearing on behalf of the Revenue submits that the refund claim is rejected on the ground that the assessee have not opted for provisional assessment in respect of clearances made from their factory to depot and subsequent sales on lower price as compared to the price for goods cleared from the factory. He submits that since appellant have not opted for provisional assessment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limit. On the other hand, ld. SDR relied upon the decision of the Hon ble High Court of Bombay in the case of Maharashtra Cylinders Pvt. Ltd. v. CESTAT, Mumbai [2010 (259) E.L.T. 369 (Bom.)] to submit that when assessment is not provisional if the duty has been paid on the basis of self-assessment, there cannot be any refund claim without challenging the self-assessment. He relied upon para - 8 of the decision of the Hon ble High Court of Bombay to submit that even a self-assessment is required to be challenged. 4. I have considered the submissions made by both sides. I find that the decisions cited by the ld. Counsel are squarely applicable to the facts of this case, especially Premier Explosives Ltd. decision. Para 9 of this decision is reproduced below for better appreciation. 9. On a very careful consideration of the issue, we find that in terms of the agreement between the respondents and the buyers, the price is subject to variation. In other words, the price was provisional and the goods were cleared on payment of duty. Later the price was revised and in fact it was lowered. In view of this fact the respondent was required to discharge only less duty liability. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious decisions of this Tribunal and the other Tribunal. The MRF decision of the Supreme Court has already been distinguished by the Tribunal in the case of Keltch Energies case and also in the case of Utkal Polyweave Indus. by the Calcutta Tribunal. We do not find any merit in the Revenue s appeal. The impugned order is legal and proper. Therefore, we dismiss the appeal of Revenue. (c) Indian LPG Cylinders vs. CCE, Meerut-I -2007 (207) ELT 442 (Tri. Del.) 13 . In Excise Appeal No. 5177/04 of the appellant Tirupati LPG Industries Limited, the claim of refund of Rs. 55,778.42 was made by the application dated 21-2-2002 in respect of the cylinders supplied during the period from 28-4-2001 to 19-5-2001. Therefore, the claim for the said entire period made on 21-2-2002 was within the prescribed period of limitation of one year and it cannot be rejected simply on the ground that there was no provisional assessment. Even in cases where there has been no provisional assessment before final assessment, it culminated in a refund. Refund application may lie in a variety of other cases where authority finds that excise duty is not payable under the law. Ordinarily, tax which is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter afresh in these two appeals of Tirupati LPG Industries Limited (Excise Appeal Nos. 5177 and 5178/2004) in respect of the claim for refund which relates to the period which is within the period of limitation prescribed under Section 11B. In appeal No. E/5177/04, since the entire claim for refund was within the prescribed period of limitation, that will have to be so considered, while in appeal No. E/5178/04 only claim from 21-2-2001 to 15-3-2001 which was made within one year by the application dated 21-2-2002 will have to be reconsidered, since the rest of the claim of Rs. 32,574.45 was rightly held to be time barred. (d) Rajasthan Electronics Instruments Limited vs. CCE, Jaipur 2006 (200) ELT 324 (Tri. Del.) 5 . The refund has arisen because of the following price variation clause in the contract between the parties. PRICE FALL CLAUSE (i) In case delivery schedule is already over, pending supplies against previous order are accented at such lower rates, if any, as are received in subsequent tender as against charging liquidated damages on old rates, if it is so economical and the tendered agrees to it, if they are not agreeable, supply shall not be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was not passed on to the buyer. 7 . In the result, the appeal is allowed after setting aside the impugned order. Revenue shall refund the excess paid duty to the assessee appellant at the earliest. (e) CCE, Cochin vs. Telk Limited 2005 (182) ELT 462 (Tri. Bang.) 2 . On a careful consideration, we find that the Commissioner has examined the issue on all aspects of the matter. The findings entered into by the Commissioner is legal and proper. As the assessee were clearing transformers to their customers as per terms of contract which contain price variation clause subsequent to the clearance of the goods and payment of duty, the customers reduce the price of the transformers in accordance with the terms of the contracts. Therefore, the assessee claimed refund of the excess duty paid. The claim was pertaining to all those invoices which were within time period as laid down in Section 11B of the Act. The finding recorded by the Commissioner that there was no need to resort to provisional assessment as revenue also has claimed higher duty in terms of the price variation clause whenever price has increased is a correct finding. There is no merit in these appeals and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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