TMI Blog2018 (8) TMI 1661X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment and refund can be granted in such a situation - refund allowed - appeal allowed - decided in favor of appellant. - Appeal No. E/321/2011 - Final Order No. 41630/2018 - Dated:- 23-5-2018 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Joseph Prabhakar, Advocate for the Appellant Shri R. Subramaniam, AC (AR) for the Respondent ORDER Per Bench Brief facts are that the appellants filed refund claim for refund of excise duty to the tune of ₹ 17,45,850/- being the amount excess paid by them on the ground of price variation clause in the agreement. 2. The appellants who are engaged in manufacture of Transformers had supplied four numbers of 100MWA Tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice charged by appellant in the invoice. TNEB had indicated that since the price in revised downwards, the excise duty portion relating to transformers would also stand reduced. Appellant had paid excess duty of ₹ 17,45,850/- and accordingly filed refund claim. 3.1 He submitted that authorities below grossly erred in holding that the appellant should have opted for provisional assessment. He relied upon the decision in the case of PTC Industries Ltd. Vs. Commissioner of Central Excise, Jaipur I reported in 2016 (340) ELT 563 (Tri. Del.) 4. The ld. AR Shri R. Subramaniam supported the findings in the impugned order. He submitted that the decision does not apply to the facts of the case. 5. Heard both sides. The ground for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the rate contract, the assessment has to be considered as provisional. Non-observance of procedure under Rule 7 of Central Excise Rules, 2004 will not render the assessment as final assessment and refund can be granted in such a situation. Reference stands made to the decision of the Tribunal in the cases of Sankhla Udyog v. CCE, Jaipur-II - 2014 (314) E.L.T. 350 (Tri.-Del.), K.J.V. Alloys Conductors P. Ltd. v. CCE, Hyderabad - 2012 (275) E.L.T. 90 (Tri.-Bang.), CCE, Raipur v. IBP Ltd. - 2013 (288) E.L.T. 385 (Tri.-Del.) and in the case of CC CE, Hyderabad-III v. Premier Explosives Ltd. - 2008 (226) E.L.T. 729 (Tri.-Bang.). 6. As regards unjust enrichment its stands observed in the same very decisions of the Tribunal that where the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause and the appellant have not placed anything on record to show that there existed any agreement between the appellant and their buyers evidencing that the prices were provisional. Similarly, in the case of Munjal Auto Industries (supra) there was no price variation clause in the agreement. It was in these circumstances, the Tribunal observed that in the absence of provisional assessment, the subsequent reduction in prices will not have the effect of lowering the assessable value and thus refunding the excess duty paid. 9. We note that the decisions relied upon by ld. Advocate for the appellant clearly cover the issue involved and stands given in the same set of facts and circumstances. Accordingly, by following the same, we set a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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