Custom, Excise & Service Tax Tribunal
M/S. Btp Structural India (Pvt.) Ltd vs The Commissioner Of Central Excise, 71, ... on 27 November, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeals (s) Involved: E/1003/2009 [Arising out of Order-in-Appeal No.403/2016 dated 8.6.2016 passed by the Commissioner of Customs (Appeals), Bangalore.] M/s. BTP Structural India (Pvt.) Ltd. Appellant(s) Versus The Commissioner of Central Excise, 71, Club Road, Belgaum. Respondent(s)
Appearance:
None For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 18.08.2017 Date of Decision: 27.11.2017 CORAM:
HON'BLE SHRI S.S. GARG, JUDICIAL MEMBER Final Order No. _22915 / 2017 Per : S.S. GARG The present appeal is directed against the impugned order dated 3.8.2009 passed by the Commissioner (A), whereby the Commissioner (A) has rejected the appeal of the appellant.
2. Briefly the facts of the present case are that the appellants were registered manufacturers of LPG cylinders and cleared the LPG cylinders to the oil companies for the period 1.7.1999 to 31.10.2000. During the subject period, the oil companies i.e., M/s. IOCL, BPCL and HPCL had reduced the rates of cylinders supplied by the appellant, but the intimation with regard to reduction of price was received by appellant after clearance of goods. The above oil companies had recovered the entire amount claimed from the subsequent bill. However, the duty was paid by the appellant on the higher rates as the duty was to be paid as and when the clearances took place. Therefore, as the duty of Rs.24,87,102/- was excess paid by the appellant during the subject period they had filed the refund claim with the Department. The department noticed that the subject goods were cleared by declaring the correct value under Section 4 of Central Excise Act, 1944, the goods were assessed under self-assessment procedure by the appellant as per Section 11B, the refund claim filed by the appellant for the period 1999-2001 was time barred. After following the due process of law, the adjudicating authority rejected the refund claim on time bar and aggrieved by the said order, appellant filed appeal before the Commissioner (A), who also upheld the Order-in-Original; hence, the present appeal.
3. Heard both the parties and perused the records.
4. None appeared on behalf of the appellant and on earlier occasions also, the appellant did not appear when the case was listed for hearing. Therefore, I proceed to decide the case on the basis of the grounds of appeal and after hearing the learned AR.
5. In the grounds of appeal, the appellant has submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the provisions of the Sections 11B of the Central Excise Act, 1944. It is further stated in the grounds that the pricelist of all the three oil companies were provisional, which is mentioned in the purchase order also. The appellant has stated that the refund claims were filed after finalisation as there is no correspondence in this behalf as stated by the learned Commissioner (A). It is further stated that the prices being contracted one there is no need for provisional assessment and limitation stipulated in Section 11B of the Central Excise Act, 1944 is not applicable. In support of this submission, they have relied upon the decision rendered in the case of CCE vs. R. M. Cylinders Pvt. Ltd.: 2006 (198) ELT 48.
6. On the other hand, the learned AR defended the impugned order and submitted that the Commissioner (A) has passed a reasoned order wherein he has considered the correspondence between the appellant and the oil companies. He further submitted that the refund claim in the present case is clearly time barred under Section 11B of the Central Excise Act. He also submitted that the refund claim in this case was filed on 2.1.2007 with the jurisdictional Assistant Commissioner in respect of the duty paid in excess for the period from 1.7.1999 to 31.10.2000. He also submitted that the refund in this case was filed almost after a lapse of four years from the date of finalisation of the provisional price of the subject goods. In support of his submission, he relied upon the following decisions:
i. MRF Ltd.: 1997 (92) ELT 309 (SC) ii. Mauria Udyog Ltd.: 2007 (207) ELT 31 (P&H) iii. Mauria Udyog Ltd.: 2008 (221) ELT A120 (SC) iv. Maharashtra Cylinders Pvt. Ltd.: 2010 (259) ELT 369 (Bom.) v. Rajasthan Cylinders & Containers Ltd.: 2004 (166) ELT 474 (Tri.-Del.) vi. Universal Cylinders Ltd.: 2004 (178) ELT 898 (Tri.-Del.)
7. After considering the submissions of learned AR as well as the grounds of appeal filed by the appellant, I am of the considered view that there is no infirmity in the impugned order. Further, I find that in this case the refund claim has been filed after more than four years from the date of finalisation of provisional price. The decisions which have been relied upon by the learned AR are squarely applicable in the present case. By following the ratios of the same, I do not find any infirmity in the impugned order, which is upheld by dismissing the appeal of the appellant.
(Order was pronounced in open court on 27.11.2017.) S.S. GARG JUDICIAL MEMBER rv 5 1