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TMI Blog2023 (8) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... ted for provisional assessment is not justified. Rejection on the ground that appellant has not produced the comparative documents to justify the payment of excess excise duty - HELD THAT:- The Department has called for the details of price/sale invoices of the sales made by the unrelated dealer to the ultimate customers. In fact, the price at which the dealers have sold the cars to the end users is of no consequence for considering whether higher amount of duty has been paid. The excess payment of duty has happened while making the clearances by the appellant to the related parties / dealers (NMIPL/RIPL). So to check whether there is excess payment of duty sale price of the related parties to the unrelated dealer has to be looked into and not the sale price of the unrelated dealer to the end customer. It is seen from the records that the Department has called for invoice issued by dealers to end customers to verify whether there is excess payment of duty - the allegation in the Show Cause Notice that the appellant has not furnished documents with regard to the sale price to end customers so as to verify whether the excess excise duty is paid is totally erroneous. Principl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.07.2016 were issued to the appellant proposing to reject the refund-claims. After due process of law, the original authority vide two Orders-in-Original rejected the refund-claims. Against such order, the appellant filed appeals before the Commissioner (Appeals) who vide order impugned herein upheld the rejection of refund claims. Hence, this appeal. 4.1 The Ld. Consultant Shri Rajaram R. appeared and argued for the appellant. It is submitted that the appellant sold cars manufactured by them to their related parties (traders). Since in majority of the clearances, the value on which duty was paid was higher than the price at which cars were further sold by the related parties to their dealers which resulted in payment of higher amount of excise duty by the appellant, of which refund was sought as under: S. No. Relevant period Refund application date Amount (INR) 1 Feb 2015 to July 2015 24 Feb 2016 8,11,83,347 2 Aug 2015 to Dec 2015 05 Apr 2016 10,03,23,331 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d alleged that the appellant has to furnish details of sales made by the unrelated dealers to the end customers. 4.5 The Ld. Consultant asserted that Rule 10 speaks only about the sale price from related party to unrelated buyer and not to the end customers. The impugned order rejecting the refund-claim alleging that the appellant has not produced the details of sale price to end customers is without any legal basis. 4.6 The other reason for rejecting the refund-claim is that the appellant has not opted for provisional assessment. It is submitted that the appellant vide letter dated 06.05.2011 had requested the Department for provisional assessment in regard to the clearances of the goods. Reportedly there was no response from the side of the Department. It is argued that the refund-claim cannot be rejected merely because the assessment was not provisional. The decision in the cases of Commissioner of Central Excise, Nagpur Vs. Oriental Explosives (P) Ltd. [2007 (8) TMI 206 HIGH COURT, BOMBAY], Balmer Lawrie Co. Ltd. Vs. Commissioner of Central Excise, Kolkata-VI [2014 (8) TMI 977 CESTAT KOLKATA], M/s. Sagar Cement Ltd. Vs. Commissioner of Customs and Central Excise, Hy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice can be finalized only after initiating commercial sales and stabilization of sales in India. In view of the above, we request you to kindly allow us to clear the passenger cars on provisional price. We undertake to comply with the procedure prescribed under Rule 7 of Central Excise Rules, 2002 for Provisional Assessment of Duty. We request you to kindly permit and oblige. 7.2 It is submitted by the appellant that there has been no response from the Department for the above request. The issue is no more res integra. In the case of Savita Oil Technologies Limited Vs. Commissioner of Central Excise Service Tax, Vapi vide Final Order No. 11570/2023, the Tribunal held that the refund claim cannot be rejected merely because an assessee had not opted for provisional assessment when there is excess payment of duty. 7.3 In the case of Balmer Lawrie Co. Ltd. Vs. Commissioner of Central Excise, Kolkata VI (supra), the Tribunal held as under:- 5.3 We find that the situation in the present case is more or less similar to the one referred to, in the case of Oriental Explosives (P) Ltd. s case (supra). Their Lordships had observed that even though the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following for your consideration. 1. Copy of invoices issued by Dealers to End users: We do not possess any invoices of the Dealers who sold the vehicles to the end customers. Since the excess payment of Excise Duty is arrived based on selling price of our marketing companies i.e. M/s. NMIPL and M/s. RIPL to Dealers, we request you to dispense the requirement of Dealer Invoices to end customer which are not relevant to the Refund Claim. 2. Sales details up to End users: The Assessable value adopted by RNAIPL is higher than the NMIPL and RIPL net sale price to dealers. This has resulted in payment of higher amount of excise duty by RNAIPL and refund application filed based on this workings submitted to your good office. Sales details up to end customers are not available with us and not relevant to the present claim. We have been informed orally by the Superintendent of Central Excise, Oragadam-I Range to submit sample copy of Tax invoice to process our refund application. The same has been submitted on 06.05.2016 and 13.05.2016. Request you to accept the above and process our refund applications. Kindly acknowledge receipt. 8.2 We infer that the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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