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TMI Blog2002 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty on the LPG cylinders paid by them at the time of the sale of the LPG cylinders, to the oil companies. They alleged that the refund claim had arisen on account of reduction of the prices of the cylinders by the oil companies, to whom they sold the same. While processing their claim, the Department observed that the claim was time-barred and no proof that the amount of refund was borne by them, had been furnished. They were, therefore, issued a show cause notice for the rejection of the claim as time-barred and as to why the amount should not be credited to the Consumer Welfare Fund, if held to be admissible as the incidence of duty had already been passed on to the consumers. 3. The appellants in reply to the notice have pleaded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Engineering and Industries Ltd. v. C.C.E., Kolkata-IV - 2002 (149) E.L.T. 773 (T) = 2002 (50) RLT 88. 7. The learned Counsel has also contended that the ratio of the law laid down by the Apex Court in the MRF Ltd. v. Collector of Central Excise, Madras reported in 1997 (92) E.L.T. 309 (S.C.), wherein it has been observed that "the reduction in prices subsequent to clearance of goods on payment of duty, for whatsoever reason, will not affect the liability of payment of excise duty", is not attracted to the facts of the present case and that the same had been also distinguished by the Tribunal in Utkal Polyweave Indus. P. Ltd. (supra). 8. On the other hand, the learned SDR has reiterated the correctness of the impugned order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so provisional, can be legally drawn for want of any material on the record to show that they ever made any formal request for provisional assessment in terms of Rule 9B of the Rules to the Excise Department. They never followed the procedure laid down in the said Rule for provisional assessment. Their assessments rather were admittedly final. That being so, their refund claim for the refund of the duty on the ground that subsequently there had been reduction in the prices, is liable to fail on this short ground alone, in view of the ratio of the law laid down by the Larger Bench of the Tribunal in Rajiv Mardia case (supra), wherein it has been observed by the Bench that "the compliance with the requirements of Rule 9B is required to be est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the price reduction was not a voluntary act on the part of the contract holder assessee, but was a result of a reduction by the Government, the refund for the excess paid duty was not deniable even when the price list was finally approved." The Apex Court judgment has been distinguished by the Bench by observing that the roll back of the prices was done in that case before the Apex Court as a result of meeting with the tyre manufacturers and the Government, and there existed neither a statutory price nor a contract price, while in the case before the Bench, the reduction was not done voluntarily but on the direction of the Government. But we are, however, unable to persuade ourselves to adopt the distinction brought out by that Bench in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken note of the Larger Bench decision in Rajiv Mardia case (supra). 14. Similarly, the view of the Kolkata Bench expressed in another case namely Hindustan Engineering and Industries Ltd. (supra) that though the assessment was not provisional under Rule 9B of the Rules, since as per the contract, the price was provisional and was to be finalized subsequently, the assessees were entitled to the refund of the excess duty on finalisation of the lower price, cannot at all be adopted and followed as it runs contrary to the Larger Bench decision in Rajiv Mardia case and the Apex Court judgment in MRF Ltd. case. Both these judgments were in fact never brought to the notice of that Bench. 15. Keeping in view the above ratio of the law laid do ..... X X X X Extracts X X X X X X X X Extracts X X X X
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