TMI Blog2016 (9) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical) Shri.Ashutosh Nath, Asst. Comm. (AR) for appellant Ms.Manasi Patil, Advocate for respondent ORDER M/s. Bharat Bijlee Ltd. supplied electrical transformers and accessories at contracted price containing a price variation formula. The difference between the price initially charged and the price arrived at after adjusting the price variation as per the IEEMA formula and penalty on account of delay in delivery. As a result, the appellant sought to revise the assessable value and sought refund of duty paid by them on the differential value. M/s.Bharat Bijlee Ltd. had not done provisional assessment in the case. They initially raised invoice for the full value, however, later on a credit note was issued. They ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n - 2009 (95) RLT 45 (CESTAT-Kol) and the decision of the Hon ble High Court in the case of AK Spintex Ltd. - 2009 (234) ELT 41 (Raj). 3. The learned Counsel for the respondent argued that the case is squarely covered by the Tribunal s decision in identical circumstances in their own case as reported in 2010 (262) ELT 369. She also argued that the appeal filed by the Revenue against the order of the Tribunal in their own case has been dismissed by the Hon ble High Court. She argued that since their case is squarely covered by the Tribunal decision in their own case and since the appeal against the said decision has been dismissed by the Hon ble High Court, the Revenue appeal has no merits. She further relied on the decision of the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid factually the appellants received 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 Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e . The expression relevant date has 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e supplies to MP State Electricity Board had been made during the period of dispute against a contract with price variation clause, there was no provisional assessment. It is settled law that when there is no provisional assessment and the duty is paid on the goods in terms of the price quoted in the invoices at the time of clearance from factory, subsequent reduction of price cannot be the basis for claim under refund of duty. In this case other than a letter issued by an official of MP State Electricity Board, no evidence has been produced by the respondent in support of their claim that the price had been revised downward before the clearances of the goods, in question. In view of this, the impugned order is not correct. The same is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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