Anchor Electricals Private Limited vs Daman on 17 May, 2022
(c) Indian LPG Cylinders vs. CCE, Meerut-I -2007 (207) ELT 442 (Tri. Del.)
"13. In Excise Appeal No. 5177/04 of the appellant Tirupati LPG Industries Limited,
the claim of refund of Rs. 55,778.42 was made by the application dated 21-2-2002 in
respect of the cylinders supplied during the period from 28-4-2001 to 19-5-2001.
Therefore, the claim for the said entire period made on 21-2-2002 was within the
prescribed period of limitation of one year and it cannot be rejected simply on the
ground that there was no provisional assessment. Even in cases where there has been
no provisional assessment before final assessment, it culminated in a refund. Refund
application may lie in a variety of other cases where authority finds that excise duty is
not payable under the law. Ordinarily, tax which is not payable would be tax refundable
which will be in tune with the Constitutional provisions of Article 265 which provides
that no tax shall be levied or collected except by the authority of law. Therefore, any tax
collected without the authority of law would prima facie be refundable. The topic of
refund, therefore, falls on a much larger canvass than mere cases where provisional
assessment was done before final assessment which final assessment resulted in a
refund order. Therefore, the refund applications of this appellant raising claim which
was not time barred, were required to be considered in the context of the price
variation clause. The price variation clause would have been relevant in the context of
provisional assessment if it were resorted to, will not cease to be relevant for
considering the application for refund in cases where no provisional assessment was
made before the final assessment. Therefore, even where no provisional assessment
made before final assessment, the application claiming refund can be made on the
ground of existence of price variation clause before removal of excisable goods took
place. In these cases, terms and conditions of supply of LPG cylinders which was
contained in the purchase order issued by the oil companies clearly contemplated
variation in the price of cylinders and showed that until price was fixed, supplies were to
be made on the basis of the provisional assessment. There is no dispute over the fact
that the prices at which the excisable goods were supplied under these contracts to the
oil companies, were provisional and they came to revise later giving rise to the refund
claim. According to this appellant, (Tirupati LPG Industries Limited) whose claim was
made within the period of limitation, the oil companies had issued debit notes for
making deduction in the future bills. It appears from the record that both the authorities
below have not properly taken into consideration the material which had a bearing on
the question whether duty which was recovered on the basis of the provisional price
was actually, to the extent of excess amount, deducted by the oil companies from future
bills. This ought to have been examined because, there is a communication of the oil
companies on the record that such excess amounts were to be adjusted. It would,
therefore, be necessary for the Adjudicating Authority to consider the matter afresh in
these two appeals of Tirupati LPG Industries Limited (Excise Appeal Nos. 5177 and
5178/2004) in respect of the claim for refund which relates to the period which is within
the period of limitation prescribed under Section 11B. In appeal No. E/5177/04, since
the entire claim for refund was within the prescribed period of limitation, that will have
to be so considered, while in appeal No. E/5178/04 only claim from 21-2-2001 to 15-3-
2001 which was made within one year by the application dated 21-2-2002 will have to
be reconsidered, since the rest of the claim of Rs. 32,574.45 was rightly held to be time
barred."