TMI Blog2011 (8) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods in terms of the original price - Therefore, allow the appeals and set aside the impugned orders and remand the matters to the adjudicating authority to decide the issue afresh in accordance with the provisions of law. - 3883-3885 of 2005 - - - Dated:- 11-8-2011 - Shri Justice R.M.S. Khandeparkar, Shri Rakesh Kumar, JJ. Shri B.L. Narasimhan, Advocate for the appellants Shri B.K. Singh, Authorised Departmental Representative (Jt.CDR) for the Revenue Per Shri Justice R.M.S. Khandeparkar: Since a common question of law and facts arise in these matters, they were heard together and are being disposed of by this common order. 2. Only issue which is sought to be raised in these matters is whether consequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roportionate credit should be reversed in cases where a manufacturer avails credit of the amount of duty paid by supplier as reflected in the excise invoice, but subsequently the supplier allows some trade discount or reduces the price, without reducing the duty paid by him. 2. The issue has been examined. Since, the discount in such. cases are given in respect of the value of inputs and not in respect of the duty paid by the supplier, the effect of reduction of value of inputs may be that the duty required to be paid on the inputs was less than what has been actually paid by the inputs manufacturer. However, the fact remains that the inputs manufacturer had paid the higher duty. Rule 3 of Cenvat Credit Rules, 2004 allows credit of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived less amount consequent to the variation of the price on the strength of price variation clause in the agreement between the assessee and the supplier and, therefore, less duty was payable and hence the differential amount in the duty paid and payable is required to be refunded to the appellants. 13. The appellants have not pointed out any specific provision which would entitle the appellants to seek such refund except pointing out Section 11B of the said Act. Section 11B(1) provides that any person claiming refund of any duty of excise and interest, if any, paid on such duty may make an application for refund of such duty and interest, if any, paid on such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been defined under clause (b) of sub-section 5 of Section 11B. Sub-clause (eb) of Section B provides that the relevant date means, in case where the duty of excise is paid provisionally under the said Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof. In other words, in case where the duty is paid provisionally under the Act or rules made thereunder the claim for refund can be lodged within a period of one year from the date of adjustment of duty after the final assessment thereof. It would obviously disclose that question of refund of duty on the ground of excess payment can arise in relation to the specify matters under Section 11(5)(b) of the said Act and one of such occasion can be wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be determined. In case where the goods are sold by the assessee for delivery at the time and place of removal the assessee and the buyer of the goods are not related and the price is the sole consideration for the sale then such value can be the transaction value and in any other case including the case where the goods are not sold, the value shall be the value determined in such manner as may be prescribed. In other words, for the purpose of determining the duty liability the value of the goods is to be determined either as transaction value or as is prescribed under the rules. It is not in dispute in the case in hand, such value has necessarily to be at the time of removal of the goods. The expression time of removal has been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which ought to have been calculated for the purpose of payment of duty. In case of payment of duty or tax, there is no question of any voluntariness, it is always imposed upon the assessee. Being so, there is no presumption that the product can be overvalued. 16. Bearing in mind the above facts and the provisions of law, therefore, it is difficult to accept that on account of variation of price on the lower side by the buyer after the clearance of the product that could evade or in any way result in variation of the valuation of the product for the purpose of determining the duty liability at the time of clearance of the goods. Such a variation of price or lesser payment of price subsequent to the clearance of the goods either on acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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