2010 (8) TMI 235

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....d of excess duty paid is applicable where the prices are provisional and the self assessment is made by the assessee based upon the provisional rate(s)? If No, then since when should the period of limitation for raising a claim for refund of excess excise duty paid where the excise duty is paid on the basis of provisional rates be deemed to have started? (B)    Did not the respondent 1 commit an error of fact and an error of law in holding that the assessments in the appellant's case could not be considered as provisional and that the claims of the appellant are time barred? (C)    Whether or not the respondent 1 erred on facts and in law in distinguishing the decision in the case of Premier Automobiles L....

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....tured by it on payment of excise duty under the self removal procedure. It appears that pursuant to the contract between the appellant and its customers, namely, Indian Oil Corporation Ltd., Hindustan Petroleum Corporation Ltd. and Bharat Petroleum Corporation Ltd., there was downward revision of prices of cylinders, which were already cleared by the appellant assessee on payment of the excise duty. In the light of the downward revision in the prices, the assessee filed a refund claim on 27-2-2001 for Rs. 23,69,640/-. 4.By an order dated 12-7-2002, the said refund claim was rejected as time barred. On appeal filed by the appellant-assessee, the Commissioner of Central Excise (A) by his order dated 31-12-2002 set aside the order in origin....

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....nd any merit in the above contentions. Admittedly, while clearing the goods on payment of excise duty, the procedure for removal of goods on provisional basis has not been followed. The Apex Court in the case of Metal Forgings v. Union of India [2002 (146) E.L.T. 241 (S.C.)] has held that in the absence of order of provisional assessment, the clearance cannot be said to be on provisional assessment basis. 8. Where the goods are cleared under the self removal procedure basis on approved classification list and approved price list, the clearances are on self assessment and unless such self assessment is varied or altered, the question of refunding the duty paid on self assessment does not arise at all. The Apex Court in the case of M....