TMI Blog2003 (8) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... 03, on which date it was adjourned. It was adjourned on 7th May, 2003 at the request of the assessee. The document presently submitted by the assessee does not incidentally suggest any illness or disease as claimed. We therefore decline to adjourn and having heard the departmental representative proceed to dictate the order. No submissions have been filed by the assessee. 2. The assessee is a manufacturer of cylinders which it supplied to Indian Oil Corporation, Hindustan Petroleum Corporation Ltd., or Bharat Petroleum Corporation Ltd. to be used by them for storing liquified petroleum gas. It filed in February, 2001 a claim for refund of part of the excise duty paid on the cylinder which were cleared between 1-7-1999 and 31-8-2000. The b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k the view that since the agreement between the buyer and the seller contained a clause for variation of the price the assessment made by the authorities was provisional, relying in support upon the Bombay High Court's judgment in Premier Automobile v. Union of India - 1987 (30) E.L.T. 71 and the decision of the Tribunal in Indian Aluminium Co. v. CCE - 1997 (95) E.L.T. 386. He concluded that the period of limitation specified in Section 11B will not apply. He found the certificate of the chartered accountant sufficient evidence to show that incidence of duty had not been passed on. He therefore set aside the order of the Asstt. Commissioner and allowed the claim. Hence this appeal by the Commissioner. 6. The departmental representative c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Premier Automobiles Ltd. The company had fixed a sale price for its Fiat cars which was higher than the price at which these cars could be sold in terms of the Motor Cars (Distribution and Sales) Control (Amendment) Order, 1969. The Company and other manufacturer filed a writ petition to the Supreme Court challenging the constitutional validity of this order. During the pendency of this writ petition, the Supreme Court declined to grant interim relief and the company therefore sold the car at the price determined in terms of the order. It made it clear to its dealer that the price was provisional and would be subject to the ultimate decision of the Supreme Court. The Supreme Court finally held the price control order would not be operat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice variation clause. Therefore, the department could not have finalised the price. 8. In both these cases, the crucial factor was that the department at the time when the goods were cleared could not have finalised the price because the price were provisional being subject to variation and not final. This significant element is totally lacking in the case before us. No price list or declaration had been filed by the assessee, nor is it contended by the assessee that the fact of the prices being provisional were brought to the notice of the Department and a request was made for the provisional assessment. Reliance by the Commissioner (Appeals) in the judgment of the Supreme Court in Samrat International v. CCE - 1992 (58) E.L.T. 561 is e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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