9911796707
TMI Blog2006 (9) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty has been passed on to the buyers and the application for refund is hit by time bar in terms of Section 11AB of the Central Excise Act, 1944. The Respondents approached the Commissioner (Appeals) who passed the impugned order allowing the appeals of the Respondents. The Revenue is aggrieved over the impugned orders on the following grounds :- (i) The Commissioner (Appeals) has erred on relying the Apex Court's decision in the case of Commissioner of Sales Tax, U.P. v. M/s Auriya Chamber of Commerce, Allahabad reported in 1986 (25) E.L.T. 867 (S.C.). The said case law was distinguished by the Apex Court in the case of M/s Procelain Electrical Mfg. Co. v. Collector of Central Excise, New Delhi reported in 1998 (98) E.L.T. 583 (S.C.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Kurnool Division, Kurnool rejected the refund claims on the ground that the assessee failed to file the refund claims before expiry of one year from the date of payment of duty. The original adjudicating authority decided the case within ambit and scope of Section 11B of the Central Excise Act, which prescribed period of limitation is one year from the relevant date. The decision of the original authority is in accordance with the case laws of Apex Court in Collector of Central Excise v. M/s Doaba Co-operative Sugar Mills Ltd and M/s Procelain Electrical Mfg Co. v. Collector of Central Excise, New Delhi. (ii) Since the refund claim was not filed within the stipulated period, allowing the refund claim by the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) It was stated that the Respondents supply LPG cylinders to various Oil Companies and the contract between the Respondent and Oil Companies contain a price variation clauses. The refund arises consequent to downward revision of price. It has been held that when there is price variation clauses, the assessment is deemed to be a provisional. When the assessment is provisional, time bar would not be applicable. The case laws cited supra are clearly applicable to the facts of the case. 5. The learned JDR re-iterated the Grounds of Appeal and said that unless the Rule 19 is not followed, the assessment is said to be provisional. 6. We have gone through the records of the case carefully. There are many decisions of the Tribunal holding t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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