TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1165
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....ared the two transformers and paid the Central Excise Duty. The purchase order against which transformers were supplied had a price variation clause. The party had issued 2 invoices bearing S. No. 159 & 160 both dt. 31.10.2008 and paid the duty on the ex-works factory price + increased value. As the price of the transformer was increased, the party also charged escalated value i.e. Rs. 17,90,213/- on invoice No. 159 dt. 31.10.2008 and Rs. 21,60,059/- on invoice No. 160 dt. 31.10.2008. Thus the party has paid extra duty of Rs. 5,69,629/- on escalated value of Rs. 39,50,272/-. The buyer i.e. M/s PSEB vide memo No. 4388 dt. 18.12.2008 did not approve the escalated value as the material was received by them after the expiry of contractual deliv....
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.... case. Since the appellant has raised the invoices of higher price on its buyers and it was the buyer vide memo dt. 18.12.2008 approved lesser value by invoking the price variation clause. For this purpose, she relied on the following judgments:- 1. Universal Cylinders Ltd. Vs. CCE -2004 (178) ELT 898 (Tri. Del.) 2. PTC Industries Ltd. Vs CCE 2016 (34) ELT 563 (Tri.-Del.) 3. Rajasthan Electronics & Instruments Ltd. Vs. CCE 2006 (200) ELT 324 (Tri.-Del.) 4. CCE Vs. Kurool Cylinders Pvt. Ltd. 2007 (219) ELT 473 (Tri. Bang.) She also contended that non-compliance with the procedure for provisional assessment does not take away the right to file the refund under Section 11B of the Central Excise Act, 1944. For this purpose she relied on t....
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.... issue does not involve the short payment of duty or interest on supplementary invoices. Hence, the contention of the Ld. Advocate is not tenable. On the merits of the case, I find that the issue in dispute in the present case is squarely covered by the judgment of Hon'ble Punjab & Haryana High Court in the case of Mauria Udyog Ltd. Vs. CCE (supra) wherein the Hon'ble High Court held as under:- "4. On appeal, the Tribunal dismissed the appeal of the assessee and allowed the appeal of the revenue. In para 4 of the order, concession of the assessee that claim was time barred and was not pressed was also noticed. The argument of the assessee that Kolkata Bench of the Tribunal had allowed refund was rejected on the ground that Larger Bench of ....
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.... the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21-1-1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply." 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. 8. Further we do not find any merit, whatsoever, in the contention raised by learned Counsel for the assessee that....
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.... this behalf with the Government and the latter had agreed in refund the excise duty to the extent of the reduced price." In the said judgment, the Hon'ble High Court also relied on the judgment of Metal Forgings Vs. Union of India 2002 (146) ELT 241 extracts of which have been reproduced above. From these rulings, it is clear that relevant factor is not whether there was price variation clause or not The key factors were whether the government had agreed to refund of Excise Duty to the extent of reduced price and whether there was provisional assessment or not Admittedly, in this case also, the excise duty paid by the appellants was not reimbursed to them by the buyers PSEB to the extent of Rs. 5,69,629/- and there is no provisional asses....