9911796707
TMI Blog2003 (8) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... ely misplaced. Unlike in a situation under consideration by the Supreme Court in the case there was no requirement of final approval of the price list, since such a price list was not required to be filed and, hence no period would exist between the filing of a price list and the finalisation the clearances made during which could be considered provisionally. The reliance by the departmental representative on the judgment of the Supreme Court in Metal Forgings v. UOI, [ 2002 (11) TMI 90 - SUPREME COURT] to say that in the absence of a formal order in Rule 9B there cannot be provisional assessment is sound. These claims would thus be clearly barred by limitation. In respect of the claim which are filed within the period of limitation, the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the third time the matter has come up. When the respondent was represented by Mr. Vipin Jain, Chartered Accountant on 1-4-2003, on which date it was adjourned. It was adjourned on 7th May, 2003 at the request of the assessee. The document presently submitted by the assessee does not incidentally suggest any illness or disease as claimed. We therefore decline to adjourn and having heard the departmental representative proceed to dictate the order. No submissions have been filed by the assessee. 2. The assessee is a manufacturer of cylinders which it supplied to Indian Oil Corporation, Hindustan Petroleum Corporation Ltd., or Bharat Petroleum Corporation Ltd. to be used by them for storing liquified petroleum gas. It filed in February, 2001 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price. He dismissed the claim. The assessee appealed this order to the Commissioner (Appeals). The Commissioner took the view that since the agreement between the buyer and the seller contained a clause for variation of the price the assessment made by the authorities was provisional, relying in support upon the Bombay High Court's judgment in Premier Automobile v. Union of India - 1987 (30) E.L.T. 71 and the decision of the Tribunal in Indian Aluminium Co. v. CCE - 1997 (95) E.L.T. 386. He concluded that the period of limitation specified in Section 11B will not apply. He found the certificate of the chartered accountant sufficient evidence to show that incidence of duty had not been passed on. He therefore set aside the order of the Asst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossible to say that period of limitation prescribed in Section 11B will not apply. Let us now consider the facts of Premier Automobiles Ltd. The company had fixed a sale price for its Fiat cars which was higher than the price at which these cars could be sold in terms of the Motor Cars (Distribution and Sales) Control (Amendment) Order, 1969. The Company and other manufacturer filed a writ petition to the Supreme Court challenging the constitutional validity of this order. During the pendency of this writ petition, the Supreme Court declined to grant interim relief and the company therefore sold the car at the price determined in terms of the order. It made it clear to its dealer that the price was provisional and would be subject to the ul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce list which was filed in part 2 by the assessee had enclosed the contracts or purchase orders contained the price variation clause. Therefore, the department could not have finalised the price. 8. In both these cases, the crucial factor was that the department at the time when the goods were cleared could not have finalised the price because the price were provisional being subject to variation and not final. This significant element is totally lacking in the case before us. No price list or declaration had been filed by the assessee, nor is it contended by the assessee that the fact of the prices being provisional were brought to the notice of the Department and a request was made for the provisional assessment. Reliance by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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