Custom, Excise & Service Tax Tribunal
Cce, Bhopal vs M/S Saroj Metal Works Pvt. Ltd on 13 August, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 2277 of 2009 (SM) [Arising out of the Order-in-Appeal No. 207/BPL/2009 dated 11/05/2009 passed by The Commissioner (Appeals), Customs & Central Excise, Bhopal.] For Approval and signature : Honble Shri Rakesh Kumar, Member (Technical) 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 would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? CCE, Bhopal Appellant Versus M/s Saroj Metal Works Pvt. Ltd. Respondent
Appearance Shri R.K. Verma, Authorized Representative (DR) for the appellant.
None - for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 13/08/2013.
Final Order No. 57359/2013 Dated : 13/08/2013 Per. Rakesh Kumar :-
The respondent are manufacturers of LPG cylinders which were being supplied to various Government owned oil companies. During the period from 01/7/1999 to 31/10/2000, the supplies of LPG cylinders by the respondent were on provisional price which was to be finalised subsequently. The duty was paid on the provisional price. Subsequently, the final price was decided by the oil companies which was lower and accordingly the respondent filed a refund claim on 02/02/2001. Since, there were some deficiencies in the refund claim, the claim complete in all respects was filed on 15/10/2001. However, the department has treated 02/2/2001 as the date of filing of refund claim. The total refund amount claimed is Rs. 16,24,205/-. However, a show cause notice was issued to the respondent for rejection of the claim as time barred in respect of the period prior to 02/02/2000, as according to the department only the refund of this duty paid on 03/2/2000 and after this date was within time. Accordingly, by an order passed by the Assistant Commissioner, the refund claim for the amount of Rs. 7,57,265/- was rejected and only refund of balance of Rs. 8,55,895/- was sanctioned to the respondent. The respondent filed an appeal to Commissioner (Appeals) against the order of the Assistant Commissioner. The Commissioner (Appeals) vide order-in-appeal dated 17/08/04, treating 15/10/2001 as the date of filing refund claim, held that the claim for the period prior to 15/10/2000 was also time barred as against the Assistant Commissioners order that only the refund claim of the duty paid prior to 03/02/2000 was time barred. On appeal filed by the respondent, the Tribunal vide final order dated 08/12/2008 set aside the Commissioner (Appeals)s order dated 17/08/2004 and remanded this matter to Commissioner (Appeals) for denovo decision, observing that the Commissioner (Appeals) should decide whether the date of filing of refund claim was 02/02/2001 or 15/10/2001 after considering the respondents submissions in this regard. The matter was decided again by the Commissioner (Appeals) vide order-in-appeal dated 11/05/09 by which the Commissioner (Appeals) set aside the Assistant Commissioners order holding that the refund claim of the amount of Rs. 7,57,265/- is not time barred, as the assessments during the period from 01/07/1999 to 31/10/2000 have to be treated as provisional. Against this order of the Commissioner (Appeals), this appeal has been filed by the Revenue.
2. Though a notice for hearing had been sent to the respondent well in advance, today when this matter was called, none representing the respondent appeared. In view of this, so far as respondent are concerned, the matter is being decided ex-parte.
3. Heard Shri R.K. Verma, learned DR, who pleaded that during the period from 01/07/1999 to 31/10/2000 duty had been paid by the respondent on the provisional price which was subsequently finalised by the oil companies, that as such, there was no provisional assessment order passed by the Assistant/ Deputy Commissioner ordering provisional assessment, that Apex Court in its judgment in the case of Metal Forgings vs. Union of India reported in 2002 (146) E.L.T. 241 (S.C.) in para 12 of the judgment has held that for treating assessment during a particular period, as provisional assessment, there must be an order passed under Rule 9B of Central Excise Rules, 1944 by Assistant Commissioner ordering provisional assessment without which the assessment cannot be treated as provisional, that in view of this, the payment of duty during 01/07/1999 to 31/10/2000 cannot be said to be under provisional assessment, as there was no order passed by the competent Central Excise authority ordering provisional assessment and, hence, the impugned order treating the assessment of duty as provisional and holding that the refund claim for period prior to 3/2/2000 was not time barred, is not correct.
4. I have considered the submissions of learned DR and have gone through the records of this case.
5. The dispute in this case is only in respect of refund of amount of Rs. 7,57,265/- of the duty paid during the period prior to 03/02/2000, as the refund claim in this case has been filed on 02/02/2001 and the Original Adjudicating Authority had accepted this date as the date of filing of refund. While, according to the respondent, through out during the period of dispute, the assessments have to be treated as provisional and, hence, limitation period would not apply, according to the department there must be a provisional assessment order which was not passed by the Assistant Commissioner. I find that on this issue, the Apex Court in its judgment in the case of Metal Forgings vs. Union of India (supra) has clearly held that for treating an assessment as provisional, there must be a provisional assessment order. Since, in this case, there is no order passed by the Assistant/Deputy Commissioner ordering provisional assessment, the payment of duty during the period from 01/07/1999 to 31/10/2000 cannot be said to be under provisional assessment and accordingly the refund claim of the duty paid during the period prior to 03/02/2000 is time barred. The impugned order is, therefore, is not sustainable. The same is set aside and on this point, the order passed by the Assistant Commissioner is restored. The Revenues appeal is allowed.
(Pronounced in the open court.) (Rakesh Kumar) Member (Technical) PK ??
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