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TMI Blog2008 (12) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Ltd. (CIL, for short) and its subsidiaries during the years 2001-02 and 2002-03 under contracts containing price variation clause. CIL fixes the prices of the goods supplied by the respondents normally during October-November every year. The prices so fixed are made applicable for the supplies made during the entire financial year. On finalization of the prices, CIL makes additional payments or recovers additional amounts depending on the fact whether the final price fixed is higher or lower than the prices adopted at the time of clearance of the goods. During the year 2001-02, CIL and its subsidiaries purchased explosives and detonating fuses till 18-11-01 at prices which were higher than the final prices determined, in terms of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not made charging a firm price. The price relevant for payment of duty was the final price determined as per the contract. It was only fair that the department refunded the excess duty paid on the tentative price just as the department collected short payment of duty owing to the price adopted for payment of duty at the time of clearances. The Order-in-Appeal No. 117/2005 (M-III) pertains to the clearances made by the respondents during the year 2001-02 and Order-in- Appeal No. 118/2005(M-III) pertains to the clearances made by the respondents during the year 2002-03. 2. In the instant appeals, the Revenue has taken the ground that the orders impugned are inconsistent with the ratio of the decision of the Tribunal in the case of Sangam P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hment. (1) CCE, Cochin v. TELK Ltd., 2005 (182) E.L.T. 462 (Tri-.Bang.) (2) Universal Cylinders Ltd. v. CCE Jaipur, 2004 (178) E.L.T. 898 (Tri.-Del.) (3) Bansal Mechanical Works Ltd. & Ors. v. CCE Kolkata, 2003 (58) RLT 547 (CESTAT-Kol.). (4) Triveni Glass Ltd. v. CCE Allahabad, 2003 (162) E.L.T. 529 (Tri.-Del.). (5) Birla Ericsson Opticals Ltd. v. CCE Bhopal, 2003 (157) E.L.T. 97 (Tri.-Del). 4. I have carefully considered the case records and the rival submissions. The respondents rely on the ratio of the decisions of the Tribunal in S. Kumar's Ltd. (supra) and Sangam Processors (Bhilwara) Ltd. (supra). In both these cases, the assessees had become entitled to refund of duty paid by them on clearance of excisable goods. In Sangam Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In such cases, the assessable value applicable to clearances gets finalized at a later date in terms of the contract. The assessee pays back the excess amount collected, or receives the amount short-paid for sales made under a contract. The price realized by the assessee on finalization of the contract alone forms parts of the assessable value of the goods. The tentative price adopted at the time of clearance of the goods will not be the transaction value applicable for assessment of clearances. As the relevant assessable value gets finalized in such cases after the clearances on payment of duty, payments made following settlement between the assessee and its customers cannot be held to be post-clearance adjustments of the assessable va ..... X X X X Extracts X X X X X X X X Extracts X X X X
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