2006 (3) TMI 424

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..... the appellant at a lower price than the originally invoiced price, at the time of supply. It was submitted that central excise duty payment by the electricity board was also at the amount worked out on the revised sale price and not at the original price. That claim was rejected under the impugned order on the ground that refund would lead to unjust enrichment. The impugned order has relied on the decision of Larger Bench of this Tribunal in the case of Grasim Industries v. C.C.E., Bhopal - 2003 (153) E.L.T. 694 (Tri.-LB). 2. The submission of the learned counsel for the appellant is that decision in the case of Grasim Industries is not applicable to the present case at all, inasmuch as. the price was provisional at the time of remova .....

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..... ween the parties. "PRICE FALL CLAUSE (i)      In case delivery schedule is already over, pending supplies against previous order are accented at such lower rates, if any, as are received in subsequent tender as against charging liquidated damages on old rates, if it is so economical and the tendered agrees to it, if they are not agreeable, supply shall not be taken and order for balance supply shall be cancelled as per provision of the purchase order. (ii)     (a) When delivery schedule is not covered if any, previous successful tenderer has also participated in a new tender enquiry, and accepted the lower rate as received in the subsequent tender, then pending supply against previous ord .....

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..... hat in all cases of price uncertainty, provisional assessment should be resorted to. Assessee can also resort to refund claim. Nor does provisional assessment help. The bar of unjust enrichment covers provisional assessment also. The only relevant question is whether the refund claim is in relation to a tax payment which remains passed on. Whether the original assessment was provisional or final is wholly irrelevant as excess payment of duty can take place under both types of assessments. In the present case, there is no dispute that the excess payment of duty was not passed on to the buyer. 7. In the result, the appeal is allowed after setting aside the impugned order. Revenue shall refund the excess paid duty to the assessee appella .....

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