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TMI Blog2022 (5) TMI 1036X X X X Extracts X X X X X X X X Extracts X X X X ..... ables Limited vs. CCE, Pune-1 - 2011 (207) ELT 81 (Tri. Mumbai) (c) Mauria Udyog Limited vs. CCE - 2007 (207) ELT 31 (P&H) (d) Mauria Udyog Limited vs. Commissioner - 2008 (221) ELT A120 (SC) (e) Munjal Auto Industries vs. CCE, Vadodara - 2014 (307) ELT 577 (Tri. Ahmd.) (f) MRF Limited vs. CCE, Madras - 1997 (92) ELT 309 (SC) 3. On careful consideration of the submissions made by learned Authorised Representative and perusal of the record, I find that there is no dispute about the fact that appellant have paid duty on the higher price when cleared the goods from their factory to depot and subsequently the goods were sold at lower transaction value. Therefore, the differential duty paid in excess arose for which the appellant have filed refund claim. Both the lower authorities rejected the refund claim only on the ground that appellant have not opted for provisional assessment. However, there is no dispute on the fact that appellant have paid duty in excess as per Section 4 of Central Excise Act, 1944 and Rules made thereunder. Merely because the appellant have not followed the provisional assessment, the refund cannot be denied as the Revenue cannot retain any amount which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the assessment is final, one has to examine the refund claim. It is reiterated that the question of the assessment being final or provisional is not relevant to a case where the refund claim has been filed within the time limit. All the case laws cited by the learned Advocate are very relevant. When there is price variation clause in the agreement when the price increases the respondent normally discharges the differential duty due to the government. The same treatment has to be meted out to the respondent in terms of the various decisions of this Tribunal and the other Tribunal. The MRF decision of the Supreme Court has already been distinguished by the Tribunal in the case of Keltch Energies case and also in the case of Utkal Polyweave Indus. by the Calcutta Tribunal. We do not find any merit in the Revenue's appeal. The impugned order is legal and proper. Therefore, we dismiss the appeal of Revenue." (b) CC & CCE, Hyderabad-III vs. Premier Explosives Ltd. - 2008 (226) E.L.T. 729 (Tri. - Bang.) "9. On a very careful consideration of the issue, we find that in terms of the agreement between the respondents and the buyers, the price is subject to variation. In other words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority of law would prima facie be refundable. The topic of refund, therefore, falls on a much larger canvass than mere cases where provisional assessment was done before final assessment which final assessment resulted in a refund order. Therefore, the refund applications of this appellant raising claim which was not time barred, were required to be considered in the context of the price variation clause. The price variation clause would have been relevant in the context of provisional assessment if it were resorted to, will not cease to be relevant for considering the application for refund in cases where no provisional assessment was made before the final assessment. Therefore, even where no provisional assessment made before final assessment, the application claiming refund can be made on the ground of existence of price variation clause before removal of excisable goods took place. In these cases, terms and conditions of supply of LPG cylinders which was contained in the purchase order issued by the oil companies clearly contemplated variation in the price of cylinders and showed that until price was fixed, supplies were to be made on the basis of the provisional assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pted the lower rate as received in the subsequent tender, then pending supply against previous order shall be taken at the lower rate as received in the subsequent tender. (b) If the supplier has not participated or participated but he is not agreeable to supply the balance quantity at lower rate received in the subsequent tender, the balance supply against previous order shall not taken and order in resepect thereof shall be cancelled without any financial liability on either side." It is clear from the above that supplies can continue on a regular basis even after the validity period of a price agreement and the mechanism provided is that continued supply over and above the finalized contract will be at the price subsequently approved. In the present case, refund claim has arisen because the appellant originally paid duty at the price of Rs. 743.11 (contract prevalent at the time of removal when supply was made) but price was approved at a reduced price of Rs. 672.94. To a case like this, the decision of the Tribunal in the case of Grasim Industries has no application. Instead, the appellant's claim remains covered by the decision of this Tribunal in the case of Universal Cy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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