TMI Blog2009 (6) TMI 772X X X X Extracts X X X X X X X X Extracts X X X X ..... ional assessment was not requested for, the department has not been able to arrive at the correct assessable value. Department has also not examined whether the discount has been passed on or not. Further, the requirement of provisional assessment and intimation are not prescribed by statute. We also note that it is a case where provisional assessment was not resorted to and department was not informed, the appellant can not be denied the benefit of deduction of turnover discount which is admissible discount as per the provisions of Section 4 - matter remanded to the Original Adjudicating Authority, who shall examine the refund claim and eligibility of the appellants for refund to arrive at exact amount admissible and also to examine the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submits that this is the requirement of the Circular also and requirement of provisional assessment and intimation to department are only procedural. He also relied upon several decisions in support of his contention that they are eligible for the refunds. Learned DR reiterated the arguments in the impugned order. 3. We have considered the submissions made by both the sides. Before we proceed further it would be relevant to produce Para 9 of the Circular dated 13-6-2000, since this is the Para on the basis of which the claim of the appellants has been rejected :- 9. As regards discounts the definition transaction value does not make any direct reference. In fact, if it is not needed by virtue of the fact that the duty is chargeabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment and the Tribunal held that the fact that assessee does not seek provisional assessment, will not take away its right under Section 11B of the Central Excise Act. In that case the Tribunal had considered the refund claim made by the appellant on the basis of price variation clause in the contract. In fact, in the case of price variation clause, it would not be possible for the assessee to intimate the department in advance as to whether there would be a price variation or not. In the case of Mauria Udyog Limited [2006 (205) E.L.T. 1012 (Tri.-Delhi)], Tribunal held that refund claim made on the ground that LPG Cylinders supplied at higher price initially but price reduced subsequently, refund claim cannot be denied on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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