2016 (11) TMI 181

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.... Pin to M/s. Spicer India Ltd., at a price based on purchase orders dated 10.08.2008 and 07.02.2009. The goods were cleared under various invoices showing therein the duty payable during the months of November 08, December, 08, January 09 and February 09. The price of the goods was subsequently reduced vide purchase order amendment dated 21.03.2009 and 15.03.2010 with retrospective effect. Due to changes in price, M/s. Spicer India Ltd., raised debit note dated 26.06.2009 on the appellant and the appellant in response, raised credit note dated 26.09.2009 on M/s. Spicer India Ltd., towards difference in price, CST and excise duty. The reduction in price has apparently resulted in excess payment of duty for which the appellant filed refund cl....

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....on the following judgements in support of his contentions:- (a) Keltch Energies Ltd. v. Commissioner of Central Excise - 2006 (196) ELT 282 (Tri. Bang.). (b) Commissioner of Central Excise v. Premier Explosives Ltd. - 2008 (226) ELT 729 (Tri. - Bang.) (c) Multimedia Frontiers Ltd. v. Commissioner of Central Excise - 2007 (219) ELT 690 (Tri. Ahmd.). (d) Commissioner of Central Excise v. Meccanica Plast Pvt. Ltd. 5. Learned D.R. appearing for the Revenue argued that in such case where price variation was anticipated, the appellant should have sought provisional assessment as provided in law. He stated that the issue is no longer res integra and has been settled in favour of the Revenue by following judgements of the Tribunal:- ....

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...., it is clear that to establish that the clearance were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules, and then material to show that the goods were cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification. These facts in the instant case are missing, therefore, in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector....