TMI Blog2000 (7) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... of the refractories was based upon imported raw-materials and Clause (2) of the Purchase Order provided for price-escalation in the event of fluctuation in exchange-rate or variation in Customs Duty. The appellants filed a price-list in Part-II on 6-12-1991 and it was mentioned in the price-list that the prices are subject to escalation in terms of the Purchase Order. Copy of the Purchase Order was also attached with the price-list. During the period from 7-12-1991 to 31-3-1992, refractories were cleared from the appellants' factory on payment of duty in terms of price reflected in the price-list dated 6-12-1991. Thereafter, due to fluctuation in the exchange-rate, the escalation-clause of the Purchase Order became operative. The appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s from the date of payment of duty, was barred by limitation under Section 11B. The appellants' contention was that the assessments during the period in question were provisional and as such, the Refund Claim could not be rejected on the point of time-bar. 4. On appeal against the above Order, the Commissioner (Appeals) agreed that the assessments were provisional, but he observed that under the amended provisions of Section 11B, time-limit is to be reckoned within six months from the date of payment of duty, notwithstanding the fact of provisional assessments. He also observed that after the amendment, the recording of relevant date for claiming refund with reference to finalisation of provisional assessments, was done away with. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the price of the goods covered by the said Purchase Orders. The said esclation-clause applied in respect of the entire supplies made under the said Purchase Orders and it is only on this basis that the said supplementary invoices were raised by the appellants and the said differential duty as per its own calculations was paid on 11-3-1992 and 31-3-1992. If the prices were not to be revised for the supplies already made, there was no occasion or scope either to raise any supplementary invoices for the supplies already made or to pay any differential duty. In such an eventuality, there would have been no scope either to pay the said differential duty or to claim refund thereof. The price-lists on the basis of the ultimately agreed escalated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate. We also find that the Larger Bench decision of the Tribunal in the case reported in A. Infrastructure Ltd. v. Commr. - 2000 (117) E.L.T. 583 (T) is also to the effect that relevant date would be the date of adjustment of duty after finalisation of the assessments in the event of provisional assessments, made under Rule 9B of the Central Excise Rules, 1944 in cases having price-escalation/variation-clause in the contract. As admittedly in the instant case, the assessments were provisional, we hold that the relevant date is not the date of payment of duty in such circumstances. As such, the Refund Claim filed by the appellants cannot be said to be barred by limitation. 7.1 The appellants have also assailed the Order of the Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
