Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Central Excise vs Kurool Cylinders Pvt. Ltd. on 1 September, 2006
Equivalent citations: 2007(114)ECC368, 2007ECR368(TRI.-BANGALORE)
ORDER T.K. Jayaraman, Member (T)
1. The Revenue has filed these appeals against the Order-in-Appeal No. 21 & 22/2005 (T) CE dated 26.10.2005, passed by the Commissioner of Customs & Central Excise, Guntur.
2. The Respondents filed a refund claim before the Original Authority who rejected the same on the grounds that the incidence of duty has been passed on to the buyers and the application for refund is hit by time bar in terms of Section 11AB of the Central Excise Act, 1944. The Respondents approached the Commissioner (Appeals) who passed the impugned order allowing the appeals of the Respondents. The Revenue is aggrieved over the impugned orders on the following grounds:
(i) The Commissioner (Appeals) has erred on relying the Apex Court's decision in the case of Commissioner of Sales Tax, U.P. v. Auriya Chamber of Commerce, Allahabad reported in 1986 (25) ELT 867 (S.C.). The said case law was distinguished by the Apex Court in the case of Procelain Electrical Mfg. Co. v. Collector of Central Excise, New Delhi by observing that in the said case assesses had sought its remedy by way of invoking extra ordinary jurisdiction of the Apex Court. In the opinion of the Apex Court, the controversy stands concluded by the decision of the Apex Court in Collector of Central Excise, Chandigharh v. Doaba Cooperative Sugar Mils Ltd., Jalandhar wherein it was observed that, 'But in making claims for refund before the Departmental authority, an assesses is bound within four corners of statute and the period of limitation prescribed in the Central Excise Act and the rules framed there under must be adhered to'.
As per Sub-section (1) of Section 11B of Central Excise Act, 1944, any person claiming refund of duty of excise my make an application for refund of such duty to the Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise before the expiry of one year from relevant date in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence [including the documents referred to in Section 12A] as the applicant may furnish 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.
In the instant case, the assessee had filed refund applications along with relevant documents after five years and ten months. The Joint Commissioner of Central Excise, Kurnool Division, Kurnool rejected the refund claims on the ground that the assessee failed to file the refund claims before expiry of one year from the date of payment of duty. The original adjudicating authority decided the case within ambit and scope of Section 11B of the Central Excise Act, which prescribed period of limitation is one year from the relevant date. The decision of the original authority is in accordance with the case laws of Apex Court in Collector of Central Excise v. Doaba Cooperative Sugar Mills Ltd. and Procelain Electrical Mfg Co. v. Collector of Central Excise, New Delhi.
(ii) Since the refund claim was not filed within the stipulated period, allowing the refund claim by the Commissioner (Appeals) be set aside and the Order-in-Original passed by the Joint Commissioner may be upheld.
3. Shri M.N. Swamy Naidu, learned Advocate appeared for the Respondents and Shri K.S. Reddy, learned JDR appeared for the Revenue.
4. The learned Advocate for the Respondents urged the following points:
(i) The issue is squarely covered by the following decisions:
(a) CCE, Hyderabad v. R.M. Cylinders (P) Ltd. & Hyderabad Cylinders (P) Ltd. Final Order No. 1933 & 1934/2005 dated 22.11.2005, passed by the Tribunal's Bangalore Bench.
(b) Nagarjuna Constructions Co. Ltd. v. CCE, Hyderabad Final Order Nos. 324 & 325/2006 dated 15.02.2006, passed by the Tribunal's Bangalore Bench
(c) Indian Aluminium Cables Ltd. v. CCE, New Delhi
(d) Premier Automobiles Ltd. v. U.O.I. and Ors.
(e) Pre-stressed concrete Poles v. CCE, Chandigarh
(f) Asiatic Oxygen & Acetylene Co. Ltd. v. CCE, Indore
(g) Indo Flogates Ltd. v. CCE Bhubaneswar 2001 (135) ELT 619
(h) Orient Pre-Stressed products (P) Ltd. v. CCE Allahabad
(i) Commissioner of Sales Tax v. Auriaya Chamber of Commerce, Allahabad 1986 (25) ELT 867 (S.C.)
(j) Utkal Polyweave Industries (P) Ltd. v. CCE, Bhubaneswar 2001 (136) ELT 818 (T)
(k) Telephone Cables Ltd. v. CCE, Chandigarh 2003 (134) ELT 237 (T)
(ii) It was stated that the Respondents supply LPG cylinders to various Oil Companies and the contract between the Respondent and Oil Companies contain a price variation clauses. The refund arises consequent to downward revision of price. It has been held that when there is price variation clauses, the assessment is deemed to be a provisional. When the assessment is provisional, time bar would not be applicable. The case laws cited supra are clearly applicable to the facts of the case.
5. The learned JDR re-iterated the Grounds of Appeal and said that unless the Rule 19 is not followed, the assessment is said to be provisional.
6. We have gone through the records of the case carefully. There are many decisions of the Tribunal holding that when there is price escalation, the assessment would be deemed provisional and the refund claim would not be hit by time bar. This Bench itself in the following cases has allowed the appeals of the assessee for refund of the amount on account of downward revision of the prices:
(a) CCE, Hyderabad v. R.M. Cylinders (P) Ltd. & Hyderabad Cylinders (P) Ltd. Final Order No. 1933 & 1934/2005 dated 22.11.2005.
(b) Nagarjuna Constructions Co. Ltd. v. CCE, Hyderabad Final Order No. 324 & 325/2006 dated 15.02.2006 The various case laws cited by the appellants are relevant. It is pertinent to note that when there is upward revision, the Respondent has to pay the differential duty to the Government. As regards the question of unjust enrichment, the Commissioner (Appeals) has clearly given a finding that even though the Respondents pay high duty, the actual bill is settled only on the correct price finalized. In other words, when there is downward revision of prices, the Respondents collect only the appropriate duty from the oil companies and not the higher duty which they had paid to the Government. This clearly indicates that there is no unjust enrichment. In these circumstances, rejection of refund claim on account of time bar and unjust enrichment cannot be sustained. There is no merit in the Revenue's appeals. Hence the same are rejected.
(Operative portion of the order has been pronounced in the open court on completion of hearing)