TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 683
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....e set of facts, therefore, these are being taken up together for disposal by this common order. 2. Briefly stated the facts of the case are that the appellant is a manufacturer of auto parts falling under Chapter 87 of the Central Excise Tariff Act 1985 and had been clearing the same for quite some time original equipment parts (Mufflers) to the factories of M/s Hero Honda Motors Limited at Gurgaon & Dharuhera. Many times on account of certain commercial contingencies there is a variation in Price, in upward or downward direction, after having cleared the said Mufflers from the appellant's manufactory on payment of duty. If there is upward revision of Price, the buyer - M/s Hero Honda Motors Ltd. - had been paying differential Price to the....
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....uthority. 3. Shri Rahul Gajera, Ld. Advocate for the appellant, argued as follows: (i) that the goods were being cleared by the appellant on provisional prices and the same was in the knowledge of the Department. That since in the past there had been upward revision of prices of goods with retrospective effect and the appellant had been paying differential duty suo moto on such additional considerations so received by raising supplementary invoices under intimation to the Department. In this process, the buyer used to take CENVAT credit on the strength of supplementary invoices. The Department did not raise any objection to the practice in vogue. This was for the first tim....
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....Department as stated above and the Department never raised any objection to that. The Department never directed the appellant to resort to provisional assessment under the said Rule 7. Moreover, the purpose of the said Rule 7 is to ensure that the Govt. Revenue is not at stake inasmuch as it speaks of a provisional assessment order and execution of a bond. That the objective of the said Rule 7 is otherwise achieved by the appellant's practice inasmuch as the Govt. Revenue had never been at stake for the reason that the appellant had been suo moto paying the differential duty as a law abiding company. It is for this reason that the Department did not raise any objection on this practice at any point of time in the past. He argued that non-ob....
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....sp; (b) Commissioner of Central Excise, Ghaziabad Vs. Mahavir Cylinders - [2012 (284) ELT 54 (Tri. Del.)]. 4. On the other hand Shri Alok Shrivastav, Ld. AR for the revenue, argued that there was no concept of provisional price under the central excise law. He contended that the appellant could not claim refund of duty on the grounds of subsequent reduction in Price in view of the following case laws: (a) MRF Ltd. Vs. Collector of Central Excise, Madras - [1997 (92) ELT 309 (S.C.)]; (b) Commissioner of Central Excise, Raipur Vs. Blastech (India) Pvt. Ltd. - [2011 (274) ELT 210 (Tri. Del.)]....
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....ssible to the appellant. In the present case the appellants have not placed anything on record to show that there existed any agreement between the appellant and the buyers evidencing that the prices were provisional. Moreover, the appellant had not resorted to provisional assessment in terms of Rule 7 of the Central Excise Rules, 2002. Therefore, the appellant's case is clearly distinguishable from that of Nagarjuna Construction Co. (supra) and Mahavir Cylinders (supra) in view of the following case laws:- (a) It is observed that I find that the Hon'ble Supreme Court held in the case of MRF LTD. Vs. Collector of Central Excise, Madras (supra) as under: 2. We have heard th....
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....no merit in this appeal brought by the assessee and dismiss the same with no order as to costs. (b) In the case of Mauria Udyog Ltd. Vs. Commissioner of Central Excise (supra), also the Hon'ble Punjab & Haryana High Cour held as under: 7. In the present case, it is not shown that clearance of the goods was made on provisional basis. Once this is so, reduction of price at a later date could not be made foundation for seeking refund. (c ) In the case of Commissioner of Central Excise, Raipur Vs. Blastech (India) Pvt. Ltd. (supra), CESTAT held as under: 8. The provisions of law are very cle....