TMI Blog2017 (8) TMI 1165X X X X Extracts X X X X X X X X Extracts X X X X ..... - Appeal No. E/564/2010 - Final Order No. 61478/2017 - Dated:- 9-8-2017 - Mr. Devender Singh, Member (Technical) Ms. Krati Somani, Advoate for the Appellant Sh. R.K. Sharma, AR for the Respondent ORDER Per : Devender Singh The appellants are in appeal against the impugned order. 2. The brief facts of the case are that the appellants are engaged in manufacture of transformers falling under chapter 85 of the Central Excise Tariff. They filed refund claim of ₹ 5,69,629/- on the ground that extra duty was paid on two transformers supplied to Punjab State Electricity Board (PSEB). They cleared the two transformers and paid the Central Excise Duty. The purchase order against which transformers were supplied had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. Vs. CCE 2016 (340) ELT 563 (Tri. Del.) 2. ECE Industries Ltd. Vs. CCE 2009 (237) ELT 428 (Tri.-Bang.) 3. Karnataka Vidyuth Karkhane Ltd. Vs. CCE 2015 (327) ELT 658 (Tri.-Bang.) 4. Sankhla Udyog Vs. CCE 2014 (314) ELT 350 (Tri.-Del.) 5. CCE Vs. Mahavir Cylinders 2012 (284) ELT 54 (Tri.-Del.) 6. KJV Alloys Conductors Pvt. Ltd. Vs. CCE 2012 (275) ELT 90 (Tri. Bang.) 7. Bharat Bijlee Ltd. Vs. CCE 2010 (262) ELT 369 (Tri.-Mum.) 8. Keltech Energies Ltd. Vs. CCE 2006 (196) ELT 282 ( Tri. Bang.) 9. CCE Nagpur Vs. Oriental Explosives (P) Ltd. 2008 (222) ELT 205 (Bom) She also contended that there is no unjust enrichment in the present case. Since the appellant has raised the invoices of higher price on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble Supreme Court in the case of Steel Authority of India Ltd. Vs. CCE, Raipur (Supra) and as also the judgments in the case of CCE, Pune Vs. SKF India Ltd. 2009 (239) ELT 385 (S.C.) and CCE Vs. International Auto Ltd. 2010 (250) ELT 3 (SC). 7. I find that the issue referred to the Larger Bench of the Hon ble Supreme Court pertains to whether the interest on the supplementary invoices is payable from the date of clearance of goods as duty was paid on the basis of invoices and the differential payment was made subsequently. The question to be decided thereon is whether on date of clearance when the excise duty was paid, whether there is short payment of duty and leviability of interest thereon. In the present case, the issue does not inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Forgings v. Union of India, 2002 (146) E.L.T. 241 in which it was held :- 12. From the above, it is clear that to establish that the clearance 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 said provisional basis, and payment of duty was also made on the basis of said provisional classification. These facts in the instant case are missing, therefore, in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon ble Supreme Court in the case of MRF Ltd. Vs. CCE, Madras 1997 (92) ELT 309 (SC) wherein the Hon ble Supreme Court held as under:- Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. Therefore, subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned, unless it is shown that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdictional High Court would prevail. It is also significant that in its judgment in the case of Steel Authority of India Ltd. Vs. CCE, Raipur (supra), the Hon ble Supreme Court itself, in Para 24, has reiterated the principle that was laid down in the case of MRF Ltd. Vs. CCE, Madras (supra) and hence the same reinforces the judgment of Hon ble Punjab Haryana High Court in the case of Mauria Udyog Ltd. Vs. CCE (supra). 10. As the appellant fails on the main issue, I see is no need to look into the other points raised by the appellants. 11. Following the judgment of Hon ble Punjab Haryana High Court in the case of Mauria Udyog Ltd. Vs. CCE (supra), I hold that there is no infirmity in the order of the Ld. Commissioner (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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