Customs, Excise and Gold Tribunal - Delhi
Indian Lpg Cylinders And Tirupati Lpg ... vs Cce on 23 August, 2006
Equivalent citations: 2006(113)ECC105, 2006ECR105(TRI.-DELHI), 2007(207)ELT442(TRI-DEL)
ORDER
R.K. Abichandani, J. (President)
1. In these three appeals, no one has appeared for the appellants though they were duly notified for final hearing and the notice of date of hearing was served on them. Since the appeals involve common questions, they have been heard together.
2. The learned advocate Shri P.R. Mullick has not appeared for hearing though earlier he had sought an adjournment requesting for listing the appeals for hearing in the week commencing from 10.7.2006. Though the matter was called out on 18th August, 2006 and has been heard continuously since then, no one has cared to appear till now. The appeals are heard by the assistance of the learned Authorized Representative of the department who has taken the court through the entire record and pointed out the contentions raised by the assessees and dealt with them in his arguments.
3. Appeal No. E/5176/04 has been filed by the appellant Indian LPG Cylinders challenging the order of the Commissioner (appeals) dated 5.7.2004 upholding the Order-in-original dated 30.1.2003 by which the Deputy Commissioner rejected refund claim of Rs. 6,69,066/- made by the appellant. This appellant had supplied gas cylinders to Bharat Petroleum Corporation Limited (BPCL) from 1.7.1999 to 31.10.2000 on provisional contract price. BPCL had thereafter revised the provisional price by their letter dated 31.10.2000 with effect from 1997. The appellants, therefore, preferred refund claim by their letter dated 21.8.2002 claiming refund of duty of Rs. 6,69,066/-. The department thereafter issued show cause notice dated 18.9.2002 requiring the appellants to show cause as to why their refund claim should not be rejected on the ground that the appellant was well aware of the fact and it should have made a request for provisional assessment since price was subject to change in future and that the claim for the entire period filed on 27.8.2002, being after a lapse of more than one year from the date of the invoice, was time barred. It was alleged that the appellant has failed to prove that they had not passed on the full incidence of duty to the BPCL and that this was not a case of unjust enrichment. The Deputy Commissioner on the basis of the material on record held that the plea of the appellant that the price of cylinder being provisional, the assessment should be deemed to be provisional under Rule 9B(1) of the Central Excise Rule, 1944, was not correct. It was held that the communication by the department advising the party that since sale prices were provisional and yet not finalized, the party may file the refund claims only after the finalization of prices, was general in nature and did not constitute any acceptance on the part of the department that the party had complied with the rules governing provisional assessment of duty or had followed the procedure laid down under Rule 9B. It was further held that the appellant had not shown that the amount of Rs. 21,57,7447- deducted against document No. 600011166 dated 10.11.2000 did not indicate that the deductions were made consequent to finalization of the prices of cylinders involved in this refund claim. The appellant had not submitted the copy of the said document, and it was held that in the absence of such details, it was next to impossible to establish a co-relation to the effect that the deductions were actually made by BPCL consequent to finalization of prices. Relying upon Section 12B of the Central Excise Act, 1944 and holding that the assessable value declared by the assessee represented the actual value of the goods prevalent at the time and place of removal which was realized by the appellant from the BPCL, it was held that the bar of unjust enrichment truly applied in the present case. It was further held that the limitation of one year was applicable, because the duty was not paid under protest and no protest letter was lodged. It was, therefore, held that the refund claim made on 27.8.2002 in respect of the period 1.7.1999 to 31.10.2000 when the invoices were issued and duties were paid, was time barred. The claim was, therefore, rejected. The Appellate Commissioner also held that the claim was time barred being not filed within the stipulated period of one year. He also held that the appellant had not produced any evidence to establish the co-relation that the amount deducted by the BPCL related to invoices under which excess duty was paid. It was found that the assessee was duty bound to make a request for provisional assessment under Rule 9B and that not being done, the claim could not be entertained. He relied upon the ratio of the decision in A. Infracture Ltd. v. CCE. Jaipur , in support of this conclusion. He also relied upon the decision in the case of Rajasthan Cylinders & Containers Ltd. v. CCE, Jaipur , holding that discussing the identical issue, the Tribunal has held that mere mention in the RT-12 return that there is provisional assessment, does not make the assessment provisional. The Tribunal rejected the appeal on the basis of the decision of the Apex Court in Metal Forgings case in which it was observed mere mention in RT-12 return that there is a provisional assessment in respect of the specific invoices, does not make the assessment provisional and there has to be an order under Rule 9B of the Rules and material to show that the goods were cleared on the provisional basis.
4. In Appeal No. E/5177/04, the appellant Tirupati LPG Industries Limited has challenged the order of the Commissioner (Appeals) made on 5.7.2004 dismissing the appeal and upholding the order of the Deputy Commissioner rejecting the refund claim of the appellant. In this case, by letter dated 21.2.2002, the appellant had claimed refund of duty of Rs. 55,778.42/- on the ground that it had supplied 3,144 cylinders to M/s. Hindustan Petroleum Corporation Limited (HPCL), during the period from 28.4.2001 to 19.5.2001 against purchase order dated 4.4.2001, at a provisional price of Rs. 637.17 per cylinder which was pursuant to price variation clause in the contract, finalized at Rs. 575/- per cylinder giving rise to the said claim of refund. The Revenue issued show cause notice on 25.9.2002 on the appellant for showing cause as to why the claim should not be rejected on the grounds mentioned in the notice. It was alleged that from the documents submitted by the appellant, it nowhere appeared that the full incidence of duty was not passed on and that it was not a case of unjust enrichment. It was also alleged that when the claimant was aware that rates were to be finalized, it should have made a request for provisional assessment, which was not done. Though the appellant had claimed that they were submitting copy of the price finalization at Rs. 575/- per cylinder inclusive of excise duty, they have not submitted the same to show that the price actually paid was Rs. 575/- per cylinder inclusive of excise duty. It was alleged that the relevant record for the month of April and May, 2001 was not produced. The Deputy Commissioner considering the rival contentions found that the assessable value declared by the appellant appeared to represent the actual value of the goods prevalent at the time and place of removal. It was held that though the appellant was aware of the fact that rates may change in future, the appellant did not make any request for provisional assessment. As regards letter dated 29.1.2002, it was found that this letter was never received by the office and the addresses shown in the letter and the UPC were different. Moreover, even the said letter dated 29.1.2002 was not an application requesting for provisional assessment as contemplated by Rule 9B. It was held that the invoices in question showed the realization of excise duty by the appellant on higher rates i.e. at the rate which was paid and the appellant has failed to prove that higher duty so charged from HPCL had subsequently been refunded to them as a consequence of downward revision of prices. It was held that in the present case, it was nowhere submitted that they had not passed on the full incidence of duty and that it was not a case of unjust enrichment. The refund claim was, therefore, rejected. The Commissioner (Appeals) by his order dated 5.7.2004 held that this case was not a case of provisional assessment and that the decision of the Tribunal in Telephone Cables Ltd. v. CCE on which the appellant had placed reliance, was to be considered as over-ruled in view of the Larger Bench and the Supreme Court decisions, referred to, by him. It was also held that undisputedly, the appellant has not produced any documents evidencing that the case was not hit by the provisions of unjust enrichment. The appeal was, therefore, dismissed.
5. In Appeal No. E/5178/04, the same appellant Tirupati LPG Industries Limited has challenged the order-in-appeal made by the Commissioner (Appeals) on 5.7.2004, confirming the order of rejection of refund claim which was made on 21.2.2002 for a sum of Rs. 2,70,380.49 in respect of the cylinders supplied to the Indian Oil Corporation (IOC) during the period from 31.1.2001 to 15.3.2001 against the purchase order dated 12.1.2000. The appellant made the claim on the basis of downward price revision of cylinder pursuant to the price variation clause. It was alleged in the show cause notice which was issued on 2.9.2002 that the claim in respect of 6 invoices dated 31.1.2001 for Rs. 32,574.45 made on 21.2.2002, was time barred, being made after the lapse of a period of one year from the date of issue of the invoices. The appellant was called upon to show cause as to why the refund claim should not be rejected since no request was made for provisional assessment on the ground that the price was provisional and in view of the presumption that full incidence of duty was deemed to have been passed on to the buyers under Section 12B of the Act. The Deputy Commissioner, by his order dated 28.1.2003, held that the claim in respect of Rs. 32,574.40 made for the aforesaid 6 invoices was time barred, in view of the provisions of Section 11B of the Act since there was no provisional assessment made under Rule 9B. The contentions founded on the basis of letter dated 29.1.2002 allegedly sent under UPC, were rejected on the same ground as was done in the other order made in the appellant's case referred to above hereinabove and even the other contentions regarding unjust enrichment and non-production of necessary evidence to show that IOC had subsequently refunded the amount consequent to the price variation clause, were also held against the assessee for the same reasons as were given in the other order. The entire refund claim was, therefore, rejected and the Commissioner (Appeals) on the same grounds on which the other appeal of the appellant was rejected and which have been referred to above, dismissed the appeal. It was, however, held that a portion of the claim was rightly held to be time barred under Section 11B since the duty was not paid provisionally under Rule 9B and it was not the case of the appellant that the duty was paid within the stipulated period of one year from the date of payment of duty.
6. It will be noticed that in all these three appeals, the common contention of the appellants was that since there was price variation clause in the contract and the transactions had taken place on the basis of the provisional price the assessment Should have been treated as provisional and, therefore, when the prices by the oil companies came to be fixed, the appellants became entitled to claim refund on the basis of such downward variation which was made in their respective cases. According to the appellants, the Commissioner (Appeals) had erroneously relied upon the decision of the Tribunal in Rajasthan Cylinders and Containers Ltd. v. CCE and the decision of the Apex Court in Metal Forgings (Supra). It was contended that the Deputy Commissioner had earlier on 13.2.2001 informed the appellants that refund claims were premature as the sale price of cylinder given by the IOC, HPCL and BPCL were provisional and had directed the appellants to file their refund claim on finalization of the prices. It is contended that the letter of the Deputy Commissioner dated 13.2.2001 should be treated as an order under Rule 9B of the Rules by which the earlier prices were taken to be provisional, and substantial compliance of Rule 9B was established. Relying upon the decision of the Tribunal in Telephone Cables Ltd. v. CCE , it is contended that even if the provisional assessment was not established, the claim for refund cannont be rejected under Section 11B. It was contended that oil companies had confirmed that they have not availed the modvat credit on the cylinders. Regarding unjust enrichment, the appellant has contended that the documentary evidence showed that the deduction was to be made in future bills and this was not a case where any deductions were made earlier, before finalization of the prices. It is submitted that since the sale price of cylinder of all oil companies were provisional and not finalized, it was established that the assessments were provisional and, therefore, there could not be any requirement of fixing a "relevant date" to ascertain whether the refund claim was time barred or not. Reliance is placed on the decision in Asiatic Oxygen & Acetylene Co. Ltd. v. CCE in which it was held that if price variation clause resulted in decrease in price, when contract for sales contained price variation clause, prices declared were provisional and consequently provisionality attaches to approval granted to the price lists and also to the assessment and, therefore, limitation for presenting claim under Section 11B of the said Act will not be attracted.
7. In appeal No. E/5177/04, it was also contended that debit notes were issued immediately on retrospective reduction of the sale price of the cylinders, and differential amounts were thus realized by the HPCL, giving rise to the refund claim of the appellant.
8. The learned Authorized Representative contesting all these appeals strongly contended that it was incumbent upon the appellants to have applied for provisional assessment under Rule 9B of the Rules, 1944 and for the subsequent period under Rule 7 of the Rules, 2002. He submitted that the order was required to be made by the concerned authority under the said provisions and security bond and bank guarantees were required to be furnished. Merely by mentioning that price was provisional, it could not be urged that the assessments were provisional. He submitted that in all the cases, the assessments were finalized on the basis of the returns filed by the appellants for the respective periods. He, therefore, submitted that no refund could be claimed on the basis of downward revision of price pursuant to the price variation clause. He also submitted that by virtue of Section 12B, there was presumption that full incidence of duty has been passed on to the buyer by the appellants and, as held by the authorities, it was not established that excess amounts recovered by way of excise duty were returned by the appellants to the oil companies by any process, such as, deduction in future bills. It was finally submitted that the authorities below have rightly held the refund claim filed beyond one year of the payment of duty as time barred.
8.1 The learned Authorized Representative for the department relied upon the following decisions in support of his submissions:
(a) The decision of the Tribunal in Jay Prestressed Products Ltd. v. CCE, Lucknow was cited to show that where the assessee has not requested for provisional assessment, the Tribunal rejected the contention that the assessments are to be taken to be provisional because of the price variation clause in the contract of the assessee with the Railway.
(b) The decision of the Tribunal in CCE, Nagpur v. Maharashtra Cylinder Ltd. was cited for the proposition that in the absence of any formal order under Rule 9B, there cannot be any provisional assessment and in the absence of the provisional assessment, the claim beyond the period of limitation would be barred.
(c) The decision of the Tribunal in Rajasthan Cylinders & Containers Ltd. v. CCE, Jaipur was referred to for proposition that in order to establish that clearances were made on provisional basis, there has to be an order under Rule 9B and materials to show that the goods were cleared on the provisional basis. It was held that mere mention in RT-12 return that there is provisional assessment in respect of the specific invoices, does not make assessment provisional. The decision of the Tribunal in Universal Cylinders Ltd. v. CCE, Jaipur-I reported in 2004 (178) ELT 898 (Tri.-Delhi) was also cited for the same proposition
(d) The decision of the Larger Bench of the Tribunal in A. Infrastructure Ltd. v. CCE, Jaipur , was cited for the proposition that the application for refund of duty amount under all circumstances and in all cases must be filed by assessee within a period of six months from the relevant date, as required under Section 11B. If, he fails to put up that claim within that period, the bar of limitation as contained in that section would be attracted and his application will be rejected on that account, it was held that the statement of law made in Indian Aluminium Cables Ltd. v. Collector of Central Excise that the provisions ' of Section 11B are for claiming refund of the duty amount where the contract/purchase contains a variation/escalation clause, would not be attracted, cannot be said to be correct and that in such a situation also, the provisions of Section 11B of the Act were attracted and the application for claiming refund of excess duty has to be filed within six months from the relevant date.
(e) The decision of the Tribunal in Traco Cable Co. Ltd. v. CCE, Cochin reported in 2004(172) ELT 33 (Tri.-Bangalore), was cited to point out that the Tribunal upheld the decision in Telephone Cables Ltd. v. CCE, Chandigarh (Supra) rendered without any reference to the decision of the Apex Court in MRF Limited v. CCE, Madras and it was not in consonance with law laid down by the Apex Court. The Tribunal, therefore, following the judgment rendered in CCE, Nagpur v. Maharashtra Cylinder Ltd. and decision of the Tribunal in MRF Ltd. (Supra), held that the claim of the appellant was rightly rejected on the ground that there was no provisional assessment and subsequent reduction in the price cannot be a subject of refund.
(f) The decision of the Supreme Court in Metal Forgings v. Union of India , was cited for the proposition that to establish that the clearances were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules and then material to show that the goods cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification. (Paragraph 12). The decision of the Supreme Court in CCE, Calcuttta v. Hindustan National Glass & Indus. Limited, was cited to show from paragraph 18 of the judgment that ratio of the decision in the case of Metal Forgings (supra) was reiterated.
(g) The decision of the Supreme Court in MRF LTD. v. CCE, Madras was cited for the proposition that once the assessee has cleared the goods on the classification and the price indicated by him at the time of removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. It was held that even if it was presumed that the roll back in the price of tyres manufactured by the appellant-company was occasioned on account of the directive issued by the Central Government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential unless it was shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price.
9. The case of the appellants is that the assessment should have been treated as provisional since the fact that price was provisional was mentioned in the purchase order issued by the oil companies. There is no dispute about the fact that the excise duty was paid on the basis of the price shown in the purchase order, as reflected in the invoices issued by the appellants at the time of removal of the goods. The appellants have relied upon the price variation clause in the Annexure to the purchase order which contained the terms and conditions. There was a price escalation/de-escalation formula adopted therein for increase/decrease in the unit price of cylinders, providing for revision in price. Under Clause 6 of the terms and conditions relating to tax and duties, it was provided that excise duty on the total cost of cylinders including valves was payable extra at actuals, as applicable at the time of supply. LPG cylinder manufacturers were informed by the Corporation by its communication dated 31.10.2000 that the price of LPG cylinder maintained provisional was revised to Rs. 645/- with effect from 1.7.1999 and, accordingly, there was a recovery of differential amounts from their bills and final adjustments would be made later on after finalization of the cylinder price. However, from 1.11.2000, the said price of Rs. 645/- per cylinder was to be the provisional basic price. Thus, the price of LPG cylinder was reduced to Rs. 645/- with effect from 1.7.1999, and appellant Indian LPG Cylinders by communication dated 29.1.2001 addressed to the Deputy Commissioner, made a refund claim of Rs. 7,95,796/- being an amount of excise duty deducted from their bills due to reduction in sale price in respect of 97525 LPG cylinders supplied to the BPCL for the period from 1.7.99 to 31.10.2000. It will be noticed that in the said communication, it was stated that refund claim was filed within the stipulated time under Section 11B of the Act. There was no mention of any provisional assessment in the said communication. The said appellant received a reply dated 13.2.2001 that the refund claim was premature as sale price was provisional and not yet finalized. It was, however, mentioned that the Deputy Commissioner over looked the fact that by communication dated 31.10.2000, the earlier provisional basic price was reduced to Rs. 645/- with effect from 1.7.1999 and that the said price was to be considered as provisional basic price with effect from 1.11.2000. This letter and subsequent similar letters have been strongly relied upon to contend that the previous assessment was a provisional assessment. Thereafter, the Indian LPG Cylinders made a refund claim on 26.8.2000 in respect of an amount of Rs. 6,69,066/-.
10. In the case of appellant Tirupati LPG Industries Limited, the aforesaid terms and conditions for supply of LPG cylinder contained in the purchase order dated 4.4.2001 contemplated price variation clause as per new pricing formula and payment of excise duty on cylinders by the purchaser as extra amount. HPCL had written a letter dated August 10, 2001 in which it was stated that from 21.6.2001 onwards amounts were withdrawn for supplies made against Change Order issued on 27.3.01 to the extent of the differential duty in the lower rate and the billed cost as per invoices submitted by manufacturers, till such time the tender is finalized. The withdrawing of the amount is, however, not specifically made with reference to the excise duty but it is made in the context of lowest rate against the tender which was substantially lower than the provisional price. In the appeals filed by appellants Tirupati LPG Industries Ltd., much reliance was placed on letter dated 29.1.2001 which is said to have been sent under UPC dated 29.1.2001 addressed to the Deputy Commissioner, Central Excise Division but it has been found that no such letter was received by the office. There was no attempt to prove the delivery of such communication even by reference to any subsequent communication. By that letter, the Revenue was informed by this appellant that they will make supply against the tender floated by three oil companies and that prices given in the tender were provisional, subject to modification. This intimation was sent for information and necessary action in the matter. According to the Authorized Representative for the department, this communication was not only not received by the Revenue but it did not constitute any request for making any provisional assessment for any period. He submitted that the decisions rendered in the context of the approved provisional price list when the classification and prices lists were required to be filed by the assessee-appellant cannot help the assessee, because that requirement was not in existence when this communication is alleged to have been sent on 29.1.2001 and it was incumbent upon the appellants to follow procedure of Rule 9B of the said Rules of 1944 and Rule 7 of Rule 2002 which admittedly has not been done.
11. Rule 9B of Rules, 1944 was in force till 30.6.2001 and from 1.7.2001, Central Excise (No. 2) Rules, 2001 came into force and under the said new Rules, topic of provisional assessment was dealt with by Rule 7. Thereafter, Central Excise Rules, 2002 came into force on 1.3.2002 superceding the Central Excise (No. 2) Rules, 2001 and even in Rules of 2002, topic of provisional assessment was dealt with by Rule 7 which operated from 1.3.2002. The provisions of erstwhile Rule 9B were substantially different from Rule 7 of the new Rules on the topic of provisional assessment of duty. As per Rule 9B, in the contingencies contemplated by Clauses a, b and c of Sub-rule (1) thereof, the proper officer was required to apply his mind and reach the requisite satisfaction about the due observance of the conditions contemplated therein and direct either on a written request of the assessee or on his own accord i.e. suo moto that the duty leviable on such goods shall, pending the production of such documents or furnishing of such information or completion of such test or inquiry, be assessed provisionally at such rate or such value as may be indicated by him, if the assessee executes a bond in the proper form with surety or sufficient security or subject to such conditions as the proper officer deems fit. In the context of the present appeals, it is clear from the record that the appellants did not send a request to the proper officer seeking any direction for provisional assessment and no such order was admittedly made.
11.1 The provision of Rule 7 of Rules, 2002 which is similar to Rule 7 of Central Excise (No. 2) Rules 2001, contemplates provisional assessment where assessee was unable to determine the value of excisable goods or the rate of duty applicable. However requirement as laid down in Sub-rule (1) of Rule 7 was that the concerned officer, by giving reasons in writing, may order allowing payment of duty on provisional basis on the request of the assessee in writing. Admittedly, even as regards the period covered by Rule 7, the concerned appellant did not send any such communication requesting for an order for provisional assessment and no such order for provisional assessment was ever made. The communication dated 29.1.2001 which was only communication about the price in the tender being provisional could never be treated as a written request of the assessee as contemplated either in Rule 9B of erstwhile Rules or Rule 7 of Rules, 2002, for making a provisional assessment. Therefore, the assessment orders which were passed in all these matters were not provisional assessment orders and could not be treated as such in the absence of an order of concerned authority made under Rule 9B of Rules 1944 or Rule 7 of Rules 2002, as were applicable at the time relevant.
11.2 The contention that the assessments were provisional which is raised by the appellants in these proceedings has relevance in the context of their refund claim because if the assessments were provisional, the period of limitation provided for making of refund claim would not start running until the assessments are finalized. The provision for refunding amount when the provisional assessment is finalized, is contained under Sub-rule (5) of Rule 9B of the erstwhile Rules and Sub-rule (5) of Rule 7 of Rules, 2002 read with Sub-rule (3) thereof. Under Rule 9B(5), it was provided that when the duty leviable on the goods was assessed finally, the duty provisionally assessed shall be adjusted against the duty finally assessed and if the duty provisionally assessed falls short of, or is in excess of the duty finally assessed, the assessee shall pay the deficiency or be entitled to a refund, as the case may be. Under Sub-rule (5) of Rule 7 of Rules, 2002, it is provided that where the assessee is entitled to a refund consequent to order for final assessment under Sub-rule (3), there shall be paid an interest on such refund made as per final assessment. However, additional provision is made in Sub-rule (6) of Rule 7 that such amount of refund shall be credited to the fund unless it is relatable to the duty of excise paid by the manufacturer if he had not passed on the incidence of such duty to any other person, in which case it will be paid to such applicant. Thus, for the period covered under Sub-rule (6) of Rule 7, besides question of limitation, further question would arise for examining whether the applicant was entitled to be paid refund amount of excise duty instead of crediting it to the fund. These provisions of Rules have relevance to Section 12B of the Central Excise Act, 1944 which raises a presumption that the incidence of duty has not been passed on to the buyer unless contrary is proved by the assessee. Section 12C of the Act provides for establishing Consumer Welfare Fund in which it was provided that the amount of duty of excise referred to in Sub-section (2) of Section 11B or Sub-section (2) of Section 11C or Sub-section (2) of Section 11D shall be credited. These provisions were brought in force from 20.9.1991, by inserting Chapter 2A in the Act.
11.3 Under Section 11B which deals with the claim for refund of duty, an application for refund was required to be made before expiry of six months from the relevant date which period was substituted to one year with effect from 12.5.2000. Therefore, the refund applications were required to be made within six months for the period prior to 12.5.2000 and within one year for the period thereafter. Section 11B requires the applicant making a refund claim to furnish documentary and other evidence along with the application to establish that the amount of duty of excise in relation to which such refund is claimed was collected from or paid by him and the incidence of such duty had not been passed on by him to any other person. However, it is made clear under the proviso to Sub-section (1) of Section 11B that this limitation shall not apply where any duty has been paid "under protest". In the present case, the material on record indicates that assessments were not provisional nor was there any request for making any provisional assessment, and no procedure of such request for provisional assessment and order being passed thereon by the proper officer for reasons in writing or furnishing security bond, was ever followed. In the absence of any provisional assessment proceeding contemplated by the Rules, the refund application was required to be tested in context of the period prescribed for making claim for refund. The appellant-assessee had not paid excise duty under protest. Therefore, in all these cases, the limitation for making refund claim started running from the relevant date of payment of duty. In Excise Appeal No. 5176/04 of Indian LPG Cylinders, the claim of refund which is the subject matter of that appeal was made by the application dated 27.8.2002 in respect of the period from 17.1999 to 31.10.2000. Therefore, the entire claim was made beyond the prescribed period of six months which was applicable prior to 12.5.2000 and also beyond the period of one year which applied after 12.5.2000. Therefore, the entire refund claim of Rs. 6,69,066/- made by the appellant Indian LPG Cylinders was clearly time barred and the impugned order made against this appellant rejecting the refund claim is, therefore, fully justified and requires to be upheld.
12. As regards Excise Appeal No. 5178/04 of the appellant Tirupati LPG Industries Limited, it appears from the record that a portion of the refund claim to the extent of Rs. 32,574.45 was time barred because the invoices relevant to the said amount were issued on 31.1.2001, as detailed in the impugned order. According to the Adjudicating Authority, the claim for refund was made on 21.2.2002 i.e., after a lapse of one year from the date of these six invoices dated 31.1.2001. Therefore, to the extent to which the authorities below have rejected the claim of this appellant in respect of the amount of Rs. 32,574.45, the impugned order is required to be upheld for the aforesaid reasons.
13. In Excise Appeal No. 5177/04 of the appellant Tirupati LPG Industries Limited, the claim of refund of Rs. 55,778.42 was made by the application dated 21.2.2002 in respect of the cylinders supplied during the period from 28.4.2001 to 19.5.2001. Therefore, the claim for the said entire period made on 21.2.2002 was within the prescribed period of limitation of one year and it cannot be rejected simply on the ground that there was no provisional assessment. Even in cases where there has been no provisional assessment before final assessment, it culminated in a refund. Refund application may he a in variety of other cases where authority finds that excise duty is not payable under the law. Ordinarily, tax which is not payable would be tax refundable which will be in tune with the constitutional provisions of Article 265 which provides that no tax shall be levied or collected except by the authority of law. Therefore any tax collected without 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 assessment. There is no dispute over the fact that the prices at which the excisable goods were supplied under these contracts to the oil companies, were provisional and they came to revise later giving rise to the refund claim. According to this appellant, (Tipupati LPG Industries Limited) whose claim was made within the period of limitation, the oil companies had issued debit notes for making deduction in the future bills. It appears from the record that both the authorities below have not properly taken into consideration the material which had a bearing on the question whether duty which was recovered on the basis of the provisional price was actually, to the extent of excess amount, deducted by the oil companies from future bills. This ought to have been examined because, there is a communication of the oil companies on the record that such excess amounts were to be adjusted. It would, therefore, be necessary for the Adjudicating Authority to consider the matter afresh in these two appeals of Tirupati LPG Industries Limited (Excise Appeal Nos. 5177 and 5178/2004) in respect of the claim for refund which relates to the period which is within the period of limitation prescribed under Section 11B. In appeal No. E/5177/04, since the entire claim for refund was within the prescribed period of limitation, that will have to be so considered, while in appeal No. E/5178/04 only claim from 21.2.2001 to 15.3.2001 which was made within one year by the application dated 21.2.2002 will have to be reconsidered, since the rest of the claim of Rs. 32,574.45 was rightly held to be time barred.
14. For the foregoing reasons, the following order is made in these appeals:
(1) Appeal No. E/5176/04 of the appellant Indian LPG Cylinders is dismissed.
(2) Appeal No. E/5177/04 of appellant Tirupati LPG Industries Limited is allowed by way of remand with the direction to the Adjudicating Authority to reconsider the claim for refund afresh and take a decision in the matter expeditiously in accordance with law and in the light of this judgment.
(3) Appeal No. E/5178/04 of the appellant Tirupati LPG Industries Limited is partly allowed by way of remand with the direction to the Adjudicating Authority to reconsider the claim for refund afresh only for the period from 21.2.2001 to 15.3.2001 and take a decision in the matter expeditiously in accordance with law and in the light of this judgment (Dictated and pronounced in open court).