2009 (9) TMI 520 - AT - Central Excise

CESTAT rules in favor of taxpayer on LPG refund claim

The Appellate Tribunal CESTAT, New Delhi, dismissed the Department's appeal against the Commissioner (Appeals) order dated 12-7-2004 regarding a refund ... Refund – provisional assessment - period of limitation - The original authority by his order dated 29-3-04, taking into account that the respondents applied for provisional assessment vide their letter dated 17-4-98 held that the claim for the period from 1-4-97 to 16-2-98 was barred by limitation. He also rejected the claim in respect of supplies made to IOCL for the period 1-1-2001 to 31-3-2001 on the ground that the assessment in respect of supplies made to IOC was yet to be finalized. – Commissioner (appeals) allowed the refund in both the situation - Held that: - The procedure prescribed for the purpose of provisional assessment in terms of Rule 9B has not been complied with for from 1-4-97 to 16-2-98 – refund from 1-4-97 to 16-2-98 is barred by period of limitation - the order of the Commissioner (Appeals) allowing the refund in respect of the supplies made to IOCL does not call for any interference from us, especially in the light of the fact that the assessment has since been finalized. – Appeal partly allowed in favor of revenue The Appellate Tribunal CESTAT, New Delhi, consisting of Justice R.M.S. Khandeparkar and Shri M. Veeraiyan, heard an appeal by the Department against an order by the Commissioner (Appeals) dated 12-7-2004. The case involved the supply of LPG Cylinders to government-owned oil companies with Price Variation Clauses. The respondents filed a refund claim of Rs. 19,24,782 for the period from 1-4-1997 to 31-3-2001. The original authority rejected part of the claim due to limitation issues and pending assessments.On Appeal, the Commissioner (Appeals) allowed the refund for the period 1-4-1997 to 16-2-1998, citing the Price Variation Clauses. For the period 1-1-2001 to 31-3-2001, the refund was allowed after the assessment was finalized. The Department argued against the refund for the earlier period and disputed the refund amount. The Tribunal found that the refund claim for the earlier period was not valid as no provisional assessment was made. However, the refund for the later period was upheld as the assessment had been finalized. The appeal was disposed of in these terms.