Custom, Excise & Service Tax Tribunal
M/S Hindusthan Engineering & ... vs Commissioner Of Central Excise, ... on 31 January, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.949/11
Arising out of O/A No.73/Kol-IV/11 dated 16.08.2011 passed by Commissioner of Central Excise (Appeals), Kolkata.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see
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
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s Hindusthan Engineering & Industries Ltd.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, Kolkata VI
RESPONDENT (S)
APPEARANCE Shri M. K. Guha Neogi, Consultant for the Appellant (s) Shri K. P. Das, Supdt. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING : 07. 12. 2012 DATE OF THE PRONOUNCEMENT : 31. 01. 2013 ORDER NO.A-22/Kol/2013 Per Dr. D. M. Misra :
The present appeal is filed against the Order-in-Appeal No.73/Kol-IV/2010 dated 16.08.2011 passed by the Commissioner of Central Excise(Appeals).
2. Briefly stated facts of the case are that the appellant had supplied 30 sets of high tensile centre buffer coupler for B. G. wagon and high capacity draft gear, falling under Chapter Sub-heading 8607.00 of CETA, 1985 to Indian Railways. The said goods were supplied pursuant to the Contract No.2005/RS(I)/174/1/1524 dated 4.4.2005 at the a price of 48,100/- per set. In the said Contract at Para 4, it is mentioned that in case lower rates are finalized, the same would be applicable for the supplies made in accordance with the amendment. By a letter dated 13.09.2006, the rates were reduced from Rs.48,100/- to Rs.37,853/- w.e.f. 15.5.2005. Consequently, they have filed a refund claim on 24.4.2007 claiming refund of Rs.60,107/-, i.e. within one year of the finalization of price. The said refund claim was rejected on the ground of time bar by the adjudicating authority. Aggrieved by the said order, the appellant filed the appeal before the ld. Commissioner (Appeals), who has upheld the order of the adjudicating authority and rejected the appeal filed by the appellant. Hence the present appeal.
3. The ld. Consultant appearing for the appellant has submitted that the goods were supplied to Indian Railways in July, 2005 on the basis of a provisional price of Rs.48,100/- per set. The contention of the ld. Consultant is that the price was finally fixed on 13.9.2006 at Rs.37,855/- per set, accordingly, on the basis of this final fixation of the price, the appellant had filed refund claim on 24.4.2007 under section 11B of the Central Excise Act, 1944, i.e. within a period of one year from the date of finalization of price. It is his submission that the ld. Commissioner (Appeals) has not considered their submission that there is a condition in the Contract that the price is provisional and not final and the relevant date for the purpose of refund of duty under Section 11B to be reckoned from the date of finalization of price. In support of his contention, he has placed reliance on the order in their own case passed by this Tribunal vide Order No.A-1319/Cal/2001 dated 12.12.2001 and also the Tribunals decision in the case of Ideal Industrial Explosives Ltd. Vs. Commissioner of Central Excise, Hyderabad : 2008 (231) ELT 485 (Tri.-Bang.).
4. Ld. A.R. for the Department submitted that the refund was barred by limitation. The appellants had paid duty at the time of clearance of the goods, that is, in July, 2005, but claimed the refund on 24.4.2007. He has submitted that fixation of final price on 13.9.06 for the goods cleared in July, 2005, cannot be the basis to treat the assessment as provisional under the Central Excise Act & the Rules made thereunder and accordingly, the relevant date be reckoned from the date of payment of duty and not finalization of price. In support of his contention, he has referred to the decision of the Honble High Court of Bombay in the case of Maharashtra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai reported in 2010 (259) ELT 369 (Bom.) and the decision of the Larger Bench of the Tribunal in the case of A. Infrastructure Ltd. Vs. Commr. of Central Excise, Jaipur reported in 2000 (117) ELT 583(Tribunal).
5. Heard both sides and perused the records. The limited issue involved for determination in the present case is, whether the refund claim filed by the appellant on 24.4.2007 pursuant to the finalization of price on 13.9.06, relating to excess duty paid in July, 2005 on the basis of a provisional price of Rs.48,100/- per set of the goods cleared to Indian Railways is beyond the time limit prescribed under Section 11B of the Central Excise Act, 1944. It is not in dispute that the price of Rs.48,100/- per set at which goods were cleared on payment of appropriate excise duty, were revised downward and finally fixed at Rs.37,853/- per set on 13.09.2006 but its effect was given from July, 2005. It is the claim of the appellants that the date on which the price was finalized i.e. 13.9.06 be the relevant date for claiming the refund of duty paid in excess in July, 2005. It is also not in dispute that at no point of time, the assessment was provisional. The relevant date has been defined in the explanation to Section 11B, and the CEA,1944 and the relevant portion reads as follows :
Section 11B. Claim for refund of duty, (B)relevant date means,- (ea) (eb) in case where duty of excise is paid provisionally Under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof ;
(f) in any other case, the date of payment of duty.
6. On a plain reading of the said meaning of relevant date prescribed under Section 11B of the Central Excise Act, 1944, it is clear that where excise duty was paid provisionally under the Act or the rules, the date of adjustment of duty after final assessment, should be the date for calculation of the period of one year for claiming refund of the excise duty paid. In any other case, the date of payment of duty, is prescribed to be relevant date for claiming the refund. In the present case, the duty was paid in July, 2005 on the basis of a provisional price, but not on the basis of provisional assessment under the Central Excise Act & Rules. I agree with the contention of the ld. A.R. for the Revenue that the Circumstances and procedure for resorting to provisional assessment has been prescribed under the Central Excise Rules which had not been followed by the Appellant in the present case and hence, finalization of price on 13.9.06, cannot be construed as finalization of provisional assessment. I find that the Honble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd., (supra) has held that even though there is a clause in the agreement stipulating downward revision of prices, the same cannot be taken to be an assessment to duty on provisional basis. Also, in the case of A. Infrastructure (supra), the Larger Bench of this Tribunal, disapproving the observation in Indian Aluminium Cables Ltd.s case held that the provisions of Section 11B of CEA,1944 for claiming refund of duty where contracts/purchase order contains a variation/escalation clause, would not be attracted. In other words, variation clause contained in an agreement/purchase Order, ipso facto cannot qualify the assessment as provisional assessment under the Central Excise Act & Rules made thereunder. The observation of the Tribunal in the appellants own case vide Order No. A-1319/Cal/2001 dated 12.12.2001 (supra), and in Ideal Industrial Explosives Ltd.s case (supra), relied by the Ld. Consultant being contrary to principle of law laid down by by the Honble Bombay High Court in the case of Maharashtra Cylinders Pvt. Ltd., (supra) and the Larger Bench of this Tribunal in A Infrastuctures case, in my opinion, is not a good law. In these circumstances, I find the order passed by the ld. Commissioner (Appeals) is a reasoned one and accordingly upheld and the appeal filed by the appellants being devoid of merit, the same is dismissed.
(Pronounced in the open Court on 31.01.2013)
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(DR. D.M. MISRA) JUDICIAL MEMBER
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Ex. Appeal No.949/11