Punjab-Haryana High Court
Commissioner Of Central Excise vs Cestat on 22 August, 2006
Equivalent citations: 2007(207)ELT33(P&H)
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel, Rajesh Bindal
ORDER Adarsh Kumar Goel, J.
1. This appeal has been preferred by the Revenue against the order of the Customs, Excise and Service Tax Appellate Tribunal (for short 'the Tribunal') allowing refund.
2. After hearing Counsel for the parties, we are of the view that the following substantial question of law arises for consideration by this Court in the present appeal :
Whether in the facts and circumstances of the case the assessee will be entitled to refund of duty paid by it at the time of disposal of the goods, merely for the reason that the rate at which goods were supplied was reduced later even though at the time of clearance of goods, procedure envisaged under Rule 9B of the Central Excise Rules, 1944 was not followed?
3. With the consent of the Counsel for the parties, we have heard the matter for final disposal.
4. Briefly the facts are that the assessee claimed refund stating that it supplied LPG Cylinders to public sector undertakings Indian Oil Corporation Ltd., Bharat Petroleum Corporation Ltd. and Hindustan Petroleum Corporation Ltd. at the rate of Rs. 637.17 per cylinder on provisional basis but the final rate settled was Rs. 575/- per cylinder. Claim of refund was rejected by the adjudicating Authority relying on judgment of Hon'ble Supreme Court in M.R.F. Ltd. v. Collector of Central Excise, Madras holding that rate of duty is to be applied on price declared on the date of clearance of the goods and any subsequent reduction in price would not be a ground for seeking refund. Reliance was also placed on the judgment of Hon'ble the Supreme Court in Metal Forgings v. Union of India wherein it was observed that the question of refund will arise only if goods were cleared and duty is paid on provisional basis and mere reduction in price subsequently was not enough for holding that duty had been unpaid or goods had been cleared on provisional basis. Appeal against the adjudication order was rejected by the Commissioner (Appeals). The Tribunal set aside the view taken by the Appellate Authority, relying upon its own decisions in Telephone Cables Ltd. v. CCE and Birla Ericsson Opticals Ltd. v. CCE, Bhopal .
5. Learned Counsel for the appellant submits that the view taken by the Tribunal in the impugned order as well as earlier judgments in Telephone Cables and Birla Ericsson (supra) was against the view taken in judgments of the Hon'ble Supreme Court in MRF Ltd. and Metal Forgings (supra).
6. We have perused the judgments of the Hon'ble Supreme Court as well as the judgments/orders relied upon by the Courts below.
7. We have also disposed of today another matter, being CEC No. 30 of 2004 (Mauria Udyog Ltd. v. Commissioner of Central Excise and Anr.) 2007 (207) E.L.T. 31 (P & H), between the same parties on the same issue. Therein we have held that in view of the law laid down by the Hon'ble Supreme Court that subsequent reduction in price could not be a ground for claiming refund, particularly, where the duty had neither been paid on provisional basis nor the goods had been cleared on provisional basis, as in the present case also, the claim of the assessee could not be upheld.
8. Accordingly, we allow this appeal and answer the question of law in favour of the revenue and set aside the impugned order.
9. An oral prayer has been made by the learned Counsel for the assessee that in terms of Section 35L(a) of the Central Excise Act, 1944, it may be certified that the case is fit one for appeal before the Hon'ble Supreme Court. We are unable to accept this request as the matter is covered by the judgments of the Hon'ble Supreme Court on the issue involved.