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TMI Blog2015 (11) TMI 1344X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant applied for refund duty of Rs. 2,702/- to the Assistant Commissioner, as it had been paid twice in respect of the same goods. In respect of the consignment of optical fibre cables cleared under invoice no. 1075 dated 11/12/2002, by mistake, higher rate was mentioned. The duty paid on the higher amount was Rs. 1,701/-. Since the appellant had received payment only of the lower amount, they applied for refund to the Assistant Commissioner of the excise duty of Rs. 1700/- paid by them. The appellant cleared a consignment of optical fibre cables to M/s. Bharti Touchtell under invoice no. 71 dated 25/4/2003. In the invoice, the price of the goods was mentioned as Rs. 1,36,500/- per K.M. and they paid duty on this basis. However, M/s. Bharti Touch Tell under their letter dated 22/7/2003 addressed to the respondent informed him that the correct rate should be Rs. 69,800/- per K.M. and in this regard, they referred to their latest rate contract. However, the purchase order against which the supply had been made mentioned the per K.M. rate as Rs. 1,36,500/-. The respondent received payment from M/s. Bharti Touch Tell only at the rate of 69,800 per K.M. Since, the duty had been paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46,500/- and as such the duty has been paid on higher price; that as regards the refund claim for the amount of Rs. 1,48,253/- in respect of the goods cleared under invoice no. 71 dated 25/4/2003 and the refund claim of amount 87,489/- in respect of the goods cleared to M/s. Tata Tele Services during period from October, 2002 to January, 2003 under invoice, in these cases, the rates have been revised after the clearance of the goods and hence, in terms of the Apex Courts Judgment in the case of MRF Limited Vs. CCE Madras (Supra) and the judgment of Honble Punjab & Haryana High Court in the case of Mauria Udyog Ltd. Vs. Commissioner of Central Excise reported in 2008 (2011) STR 319 P&H and also the Tribunals judgment in the case of Indian Explosive Limited Vs. CCE Hyderabad reported in 2012 (284) 259 (Tri-Bang), the refund claim would not be admissible. 4. Shri M.S. Negi accordingly pleaded that except for the refund claim of Rs. 1701/- in respect of the goods cleared under invoice no. 1075 dated 11/2/2002, the remaining refund has been wrongly allowed by the Commissioner (appeals). 5. Shri Harishankar, Senior Advocate, the learned Counsel for the respondent, pleaded that so fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of MRF Limited Vs. CCE Madras (Supra) would not be applicable; that as regards the refund claim of Rs. 87,479/- in respect of the supply to M/s. Tata Tele Services under their invoices during period from October, 2001 to January, 2003, during this period, the rate at which the goods were to be supplied had not been decided as a result of which the invoice had been raised at the rates mentioned in the earlier purchase order and the duty had been paid on that basis; that subsequently when the rates were finalized and the finalized rates were lower than the rate at which the invoices had been raised and the duty had been paid, this is also not the case of revision of rate after clearance of the goods, as at the time of clearance, the rate at which the goods were to be supplied had not even been fixed and the same was fixed after the completion of the supply and during period of supply the duty had been paid at the rate applicable to the previous purchase orders. 6. He, therefore, pleaded that there is no infirmity in the impugned order. 7. We have considered the submissions from both the sides and perused the records. 8. As regards, the refund claim of Rs. 1701 in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchase order wrongly mentions the rate as Rs. 1,36,500/-. If in terms of the respondents rate contract with M/s. Bharti Touch Tell, optical fibre cables were to be supplied by them at the rate of 69,800/- per K.M. and it only due to clerical mistake wrong rate Rs. 1,36,500/- was mentioned in the purchase order and invoice, this would not be the case of revision of the case after clearance of the goods and Apex Courts Judgment in the case of MRF Limited Vs. CCE Madras (supra) would not apply. If as per the respondents rate contract with M/s. Bharti Touch Tell, the goods were to be supplied at the rate of Rs. 1,36,500/- and it is only subsequently after supply of the goods, the rates were reduced after negotiations to Rs. 69,800/-, and this would be a case of revision of the rates subsequent to the clearance and in terms of the Apex Courts Judgment in the case of MRF Limited Vs. CCE-Madras, the refund of duty would not be admissible. But since the rate contract of the respondent with M/s. Bharti Touch Tell is not available in the records, this fact has to be ascertained by the lower authorities for which the same has to be remanded. 11. As regards, the refund claim of Rs. 57,479 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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