TMI Blog2009 (12) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... , for the Appellant. Shri M. Vevekananda, SDR, for the Respondent. ORDER This appeal is directed against order-in-appeal No. 15/08 (T)CE dated 30-1-2008. 2. Relevant facts that arise for consideration are as follows : The appellants were supplying Elastic Rail clips to Southern Railway, Chennai/Secunderabad as per terms and conditions of Railways Purchase Order. In terms of price variation clause, the rate of raw materials should be the rate prevalent during the month just preceding the month of inspection by the Railways. Terming that they have erroneously calculated the price variation bills by adopting the rate of RINL/Bangalore for spring steel for the month of April, 2005 and May, 2005 and paid excess duty, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as refixed, the appellants noticed that they have paid excess duty and hence they applied for the refund. He would rely upon the decision of the Tribunal in the case of Asiatic Oxygen and Acetalyne Company [2007 (117) E.L.T. 597]. He would submit that the assessments were provisional due to the price variation clause. 5. Learned DR would reiterate the findings of the learned Commissioner (Appeals) 6. We have considered the submissions made at length by both sides and perused the records. The issue to be determined in this case is whether the refund is time-barred in terms of Section 11B of the Central Excise Act, 1944. Appellant pleaded that there is existence of price variation clause in the agreement with railways and due to that asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally assessed and as finally assessed; that nothing of this sort has been done by the assessee in the present matter. The Supreme Court in the case of Metal Forgings v. Union of India [2002 (146) E.L.T. 241 (S.C.)] has held that to establish that clearances were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules and then material to show that the goods were cleared on the basis of such provisional basis and payment of duty was also made on the basis of said provisional classification. Accordingly, the assessment cannot 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 Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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