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TMI Blog2004 (5) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of said provisional classification. Accordingly, the assessment can not be deemed to be provisional merely because the contract entered into between the assessee and their customers contain prices variation clause. Similar views has been held by the Appellate Tribunal in the case of M/s. Rajasthan Cylinders and Container Ltd. v. CCE, Jaipur, Final Order [ 2003 (10) TMI 190 - CESTAT, NEW DELHI] relied upon by the learned Senior Departmental Representative. As the refund claim was initially filed on 31-1-2001, the refund claim for the period July, 1999 to 31-1-2000 was beyond the period of one year stipulated in Section 11B of the Central Excise Act. Thus, we do not find any merit in the Appeal filed by M/s. Universal Cylinders Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Advocate, submitted that the assessee manufacture metal containers (LPG cylinders); that during the period from July, 1999 to October, 2000 they had removed the cylinder to M/s. IOC Ltd., M/s. BPCL and M/s. HPCL on payment of duty; that subsequently these customers had revised the prices of the cylinders downward, on account of which, they had paid Central Excise duty amounting to Rs. 29,76,211/- in excess; that accordingly, they had filed the refund claim for the same; that the Deputy Commissioner under Order-in-Original No. 16/2003, dated 1-8-2003, rejected the entire refund claim holding that the refund claim is hit by bar of unjust enrichment as the incidence of duty had been passed on to the buyers at the time of clearance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey were subject to price variation clause, consequently provisionality also attaches to approval granted to the price lists and the assessment also must be treated as provisional and the provisions of limitation contained in Section 11B will not be attracted. He, finally, mentioned that the bar of unjust enrichment does not apply in the facts of the present matter as the prices have been finalized by their customers downward and the incidence of duty has not been passed on to them. 3. On the other hand, Mrs. Neeta Lal Butalia, learned Senior Departmental Representative, submitted that the assessee had paid the duty on the prices on which the clearance of cylinders were effected by them; that no request for provisional assessment was made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund claim. The Commissioner (Appeals) on the other hand, has taken the original date of filing the refund claim for the purpose of computing the normal period of limitation as stipulated in Section 11B of the Central Excise Act. According to Section 11B, the refund claim has to be filed within one year from the relevant date. The relevant date in the present matter is the date of payment of duty as there is no force in the submissions of the assessee that the assessment should be treated as provisional. It is not the case of the assessee that they had requested the Proper Officer to make the assessment provisional as was required under Rule 9B of the Central Excise Rules, 1944. The said Rule specifically provides that the assessee may requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he period of one year stipulated in Section 11B of the Central Excise Act. Thus, we do not find any merit in the Appeal filed by M/s. Universal Cylinders Ltd. and reject the same. 5. Coming to the question of applicability of bar of unjust enrichment, we observe that undisputed fact is that the contract entered into between the assessee and their customers contain the price variation clause. When the customers refused the price of the cylinder with effect from July, 1999, they had deducted the difference amount from payment already made by them to the assessee. In view of these facts, it cannot be claimed by the Revenue that the incidence of duty has been borne by the assessee. As their customers had not made the entire payment to them on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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