Custom, Excise & Service Tax Tribunal
Commissioner Of Customs & Central ... vs P.C. Pole Factory on 30 January, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. I Appeal No. E/464/04 & E/CO-631/04 (Arising out of Order-in-Appeal No. RK/217/Nagpur-II/2003 dated 31.10.2003 passed by Commissioner of Central Excise (Appeals), Nagpur.) For approval and signature: Honble Mr. S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) ======================================================
1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
====================================================== Commissioner of Customs & Central Excise, Nagpur Appellant (Represented by: Mr. V.K. Singh, Additional Commissioner (A.R.)) Vs P.C. Pole Factory Respondent (Represented by: None) CORAM:
Honble Mr.S.S. Kang, Vice President Honble Mr. Sahab Singh, Member (Technical) Date of Hearing : 30.01.2012 Date of Decision: 30.01.2012 ORDER NO..
Per: S.S. Kang
1. Heard the Additional Commissioner (A.R) for Revenue, as none appeared on behalf of the respondent in spite of notice. On the last date of hearing also none appeared on behalf of the respondent.
2. The Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby a refund of Rs 21,032/- was allowed.
3. The respondents are engaged in the manufacture of P.C. poles and supplying to Maharashtra State Electricity Board under a contract. The assessments were not provisional and the respondents cleared the PC poles on payment of appropriate duty. Subsequent to the clearances, Maharashtra State Electricity Board reduced the price as per the terms of the contract. In view of the reduction, respondents filed a refund claim. The same was rejected by the adjudicating authority. However, the Commissioner (Appeals) allowed the same.
4. The contention of the Revenue is that the respondents had not asked for provisional assessment and the goods were cleared on payment of appropriate duty. Therefore, the price variation after clearance of the goods will not entitle the respondents to refund of duty already paid. Revenue relies on the decision of the decision of the Honble Punjab & Haryana High Court in the case of Mauria Udyog Ltd vs Commissioner of Central Excise 2007 (207) ELT 31 (P&H), whereby the Honble High Court held that in case clearance of goods are not on provisional basis, on subsequent price reduction the assessee is not entitled for refund. The appeal filed by the assessee also dismissed by the Honble Supreme Court as reported in 2008 (221) ELT A 120 (SC).
5. We find that the Honble Punjab & Haryana High Court in the case of Maurya Udyog Ltd (supra) held as under:
6. Learned Counsel for the revenue on the other hand points out that apart from the fact that the matter was directly covered against the assessee by a judgment of Hon'ble Supreme Court in MRF's case (supra), there is a subsequent judgment of the Hon'ble Supreme Court in Metal Forgings v. Union of India in which it was held :
12. From the above, it is clear that to establish that the clearance 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 were cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification. These facts in the instant case are missing, therefore, in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply.
7. In the present case, it is not shown that clearance of the goods was made on provisional basis. Once this is so, reduction of price at a later date could not be made foundation for seeking refund.
8. Further we do not find any merit, whatsoever, in the contention raised by learned Counsel for the assessee that the Tribunal should have constituted a Larger Bench for consideration of this matter in case it was not agreeing with the view taken by a co-ordinate Bench Kolkata, as the issue is squarely covered by the judgment of Hon'ble the Supreme Court.
9. We do not find any question of law which may be required to be referred for the opinion of this Court.
10. Accordingly, the petition is dismissed.
6. In the present case, the assessments were not on provisional basis. Therefore, the ratio of the above decision is applicable on the facts of the present case.
7. In view of the above, the appeal is allowed. The Cross Objections which are in support of the impugned order are also disposed of in the same terms.
(Dictated in Court.) (Sahab Singh) Member (Technical) (S.S. Kang) Vice President rk 4