9911796707
TMI Blog2002 (5) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... y M/s. I.O.C. agreed to price of Rs. 618.15 plus Basic Excise duty and other charges subjected to revision of price; that the price was later on reduced to Rs. 605.19 plus duty and other charges; that the Deputy Commissioner under Adjudication Order No. 24/99, dated 31-8-99 rejected part of the refund claim being filed beyond the time-limit since the claim was made on 15-3-95 for the cylinders cleared during the period from 22-4-94 to 12-9-94 holding that there was no order made for provisional assessment under Rule 9B of the Central Excise Rules; that the Adjudicating Authority also held that the Respondents failed to prove that the duty burden was not passed on to the buyer; that, however, on appeal, the Commissioner (Appeals), under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of duty is a provisional payment. Reliance has also been placed on the decision in the case of J.K. Cotton Spg. Wvg. Mills Co. Ltd. v. C.C.E., 1998 (99) E.L.T. 8 (S.C.). Finally he submitted that once the duty has been paid at the time of clearance of goods, principle of unjust enrichment is attracted as held in the case of the C.C.E., Jaipur v. Adarsh Guar Gum Udyog, 2000 (120) E.L.T. 138 (Tribunal). 3. On the other hand, Shri P.S. Bedi, learned Consultant, submitted that the purchase order placed by their customers contain terms and condition regarding rate per cylinder including terms regarding escalation and de-escalation; that, therefore, the cylinder prices mentioned in the purchase order are provisional that it is because o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued by M/s. I.O.C. at the time of releasing payment of running bills; that in Payment Advice, deductions had been made on account of rate difference, Excise difference, sales tax difference; that they had also filed a detailed certificate of the Chartered Accountant in this regard; that the Tribunal, in the case of C.C.E. v. Shivalik Electric Equipment Co. Ltd., Final Order Nos. 17 and 18/2002 A, dated 8-1-2002, [2002 (140) E.L.T. 540 (Tribunal)] has held that "when the price is agreed upon between the parties, it will be open to the parties to the agreement to modify the rate". 4. We have considered the submissions of both the sides. The Respondents have not brought on record any order passed by the proper officer permitting the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce variation clause. The Larger Bench, after referring to the various provisions of the Central Excise Act and rules framed thereunder regarding determination of assessable value, payment of duty and maintainability of the refund on the plea of price variation clause, held as under : "Therefore, the assessee cannot be allowed exemption from the period of limitation prescribed by Section 11B of the Act for seeking refund of the duty on the simple ground that his contract/purchase order under which he supplied the goods contained variation/escalation clause." 5. The Tribunal further held that "The statement of law made in Indian Aluminium Cables Ltd. (supra) by the Bench of the Tribunal that provisions of Section 11B are for claiming refu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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