TMI Blog2013 (3) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... aid. In any other case, the date of payment of duty, is prescribed to be relevant date for claiming the refund. In the present case, the duty was paid in July, 2005 on the basis of a provisional price, but not on the basis of provisional assessment under the Central Excise Act & Rules and the circumstances and procedure for resorting to provisional assessment has been prescribed under the Central Excise Rules which had not been followed by the Appellant in the present case and hence, finalization of price on 13.9.06, cannot be construed as finalization of provisional assessment. As decided in Maharashtra Cylinders Pvt. Ltd., (2010 (8) TMI 235 - BOMBAY HIGH COURT) that even though there is a clause in the agreement stipulating downward r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the adjudicating authority and rejected the appeal filed by the appellant. Hence the present appeal. 3. The ld. Consultant appearing for the appellant has submitted that the goods were supplied to Indian Railways in July, 2005 on the basis of a provisional price of Rs.48,100/- per set. The contention of the ld. Consultant is that the price was finally fixed on 13.9.2006 at Rs.37,855/- per set, accordingly, on the basis of this final fixation of the price, the appellant had filed refund claim on 24.4.2007 under section 11B of the Central Excise Act, 1944, i.e. within a period of one year from the date of finalization of price. It is his submission that the ld. Commissioner (Appeals) has not considered their submission that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for determination in the present case is, whether the refund claim filed by the appellant on 24.4.2007 pursuant to the finalization of price on 13.9.06, relating to excess duty paid in July, 2005 on the basis of a provisional price of Rs.48,100/- per set of the goods cleared to Indian Railways is beyond the time limit prescribed under Section 11B of the Central Excise Act, 1944. It is not in dispute that the price of Rs.48,100/- per set at which goods were cleared on payment of appropriate excise duty, were revised downward and finally fixed at Rs.37,853/- per set on 13.09.2006 but its effect was given from July, 2005. It is the claim of the appellants that the date on which the price was finalized i.e. 13.9.06 be the relevant date for cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of price on 13.9.06, cannot be construed as finalization of provisional assessment. I find that the Hon ble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd., (supra) has held that even though there is a clause in the agreement stipulating downward revision of prices, the same cannot be taken to be an assessment to duty on provisional basis. Also, in the case of A. Infrastructure (supra), the Larger Bench of this Tribunal, disapproving the observation in Indian Aluminium Cables Ltd. s case held that the provisions of Section 11B of CEA,1944 for claiming refund of duty where contracts/purchase order contains a variation/escalation clause, would not be attracted. In other words, variation clause contained in an agreement/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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