Custom, Excise & Service Tax Tribunal
The Commissioner Of Customs& Central ... vs M/S. Premier Explosives ... on 30 January, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH AT BANGALORE Appeal No: E/90/2005 (Arising out of Order-in-Appeal No: 152/2004 dated 15.10.2004 passed by the Commissioner of Customs and Central Excise) Hyderabad III Commissionerate 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? Yes 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? The Commissioner of Customs& Central ExciseHyderabad III Commissionerate Appellant Vs. M/s. Premier Explosives Ltd.Karimnagar District Respondent
Appearance Ms Sudha Koka, Authorized Representative (SDR), appeared on behalf of the appellants Shri Rajesh C Kumar, learned Advocate, for the respondent CORAM DR. S.L. PEERAN, HONBLE MEMBER (JUDICIAL) SHRI T. K. JAYARAMAN, HONBLE MEMBER (TECHNICAL) Date of Hearing: 30.01.2008 Date of decision:
ORDER No._______________________2008 Per Shri T.K. Jayaraman Revenue has filed this appeal against Order-in-Appeal No. 152/2004 (H-III) dated 15.10.2004 passed by the Commissioner of Customs and Central Excise, Hyderabad.
2. The respondent filed a refund claim with the department. The Original Authority rejected the refund claim of Rs 4,05,883/- filed by the appellant consequent to price reduction affected by their buyers. The respondents approached the Commissioner (Appeals). The Commissioner (Appeals) relying on two case laws allowed the appeal of the respondents with consequential relief. Revenue has filed this appeal against the impugned order of the Commissioner (Appeals) on the following ground that in terms of a decision in the case of Rajiv Mardia Vs. CCE, reported in 2000 (118) E.L.T. 627 (T LB) compliance with requirement of Rule 9B of Central Excise is required to be established before claiming refund on account of provisional assessment. Reliance was also placed on the decision of the Honble Apex Court in the case of MRF Ltd. Vs. CCE Madras reported in 1997 (92) E.L.T 309 (SC) wherein it was held that fluctuation in prices subsequent to clearance of goods not to affect liability to the excise duty. It was held that reduction in prices subsequent to clearance of goods on payment of duty for whatsoever reason not to affect the liability for payment of excise duty.
3. Shri Rajesh Kumar, learned Advocate, appeared for the respondent and Ms Sudha Koka, learned SDR, for the Revenue.
4. The learned SDR reiterated the grounds of appeal and relied on the following case laws:
(i) Hindustan Wires Ltd. Vs. CCE, Delhi 2003 (151) E.L.T. 679 (Tri.-Del.)
5. On the other hand, the learned Advocate argued that in terms of the contract there was no price fixation and it was subjected to variation. In such cases, the assessment cannot be set to be final. He relied on the following case laws:
(i) Telephone Cables Ltd. Vs. CCE, Chandigarh 2003 (154) E.L.T. 237 (Tri.- Del.)
(ii) Utkal Polyweave Indus. Pvt. Ltd. Vs. CCE, Bhubaneswar 2001 (136) E.L.T. 818 (Tri.- Kolkata)
6. Further he argued that non-compliance of the procedure under Rule 9B is not decisive of the fact as to whether goods cleared are on provisional basis or not. He relied on the following case laws:
(i) Rajiv Mardia Vs. CCE
2001 (129) E.L.T. 334 (Tribunal LB)
7. Even otherwise, the issue of assessment being provisional is not relevant in the instant case as a refund claim has been filed within the period of limitation under section 11B and even otherwise being within time deserves to be considered. The issue of provisionality is relevant only from the point of view of limitation. The following case laws were relied on :
(i) Keltch Energies Ltd. Vs. CCE, Mangalore 2006 (196) E.L.T. 282 (Tri.-Bang.)
(ii) CCE, Cochin Vs. Telk Ltd.
2005 (182) E.L.T. 462 (Tri.-Bang.)
(iii) Special Blasts Ltd. Vs. CCE, Raipur 2005 (192) E.L.T. 331 (Tri.- Del.)
(iv) Birla Ericsson Opticals Ltd. Vs. CCE, Bhopal 2003 (157) E.L.T. 97 (Tri.-Del.)
(v) Hindustan Engineering & Indus. Ltd. Vs. CCE, Calcutta IV 2002 (149) E.L.T. 773 (Tri.-Kolkata)
(vi) Indian LPG Cylinders Vs. CCE, Meerut I 2007 (207) E.L.T. 442 (Tri.-Del.)
8. He also pointed out that the decisions relied on by the Revenue are not applicable and can be distinguished.
9. On a very careful consideration of the issue, we find that in terms of the agreement between the respondents and the buyers, the price is subject to variation. In other words, the price was provisional and the goods were cleared on payment of duty. Later the price was revised and in fact it was lowered. In view of this fact the respondent was required to discharge only less duty liability. The refund claim was actually filed within the time limit. Therefore, whether the assessment is provisional or not is not at all relevant in this case, because when the refund claim has been filed within the time limit even if the assessment is final, one has to examine the refund claim. It is reiterated that the question of the assessment being final or provisional is not relevant to a case where the refund claim has been filed within the time limit. All the case laws cited by the learned Advocate are very relevant. When there is price variation clause in the agreement when the price increases the respondent normally discharges the differential duty due to the government. The same treatment has to be meted out to the respondent in terms of the various decisions of this Tribunal and the other Tribunal. The MRF decision of the Supreme Court has already been distinguished by the Tribunal in the case of Keltch Energies case and also in the case of Utkal Polyweave Indus. by the Calcutta Tribunal. We do not find any merit in the Revenues appeal. The impugned order is legal and proper. Therefore, we dismiss the appeal of Revenue.
(Operative portion of this Order was pronounced in open court on conclusion of hearing) (T.K. JAYARAMAN)Member (T) (S.L.PEERAN) Member (J) /pnr/