2018 (8) TMI 1661

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....00MWA Transformers to M/s. TNEB. In the Purchase Order dated 31.1.2007 placed on them by TNEB had stipulated that the supply would be subject to Price Variation Clause. In addition, it is also stipulated that in case of belated supply of the transformers, TNEB would have the right to make downward revision of the price based on the latest bid / latest supply. As per clause 7.3(b) of the Purchase Order, it was stated that 'payment will be released as per the recent purchase order rates or lower rates obtained during recent tenders opened subject to levy of LD for belated supplies'. The TNEB vide letter dated 20.10.2008 and 29.10.2008 had intimated appellants the downward revised prices consequent to delayed supplies. Consequently, appellants....

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....ection of the refund claim is that the appellants did not opt for provisional assessment even though they were aware of the price variation clause in the agreement. Similar issue was considered by Tribunal in the case of PTC Industries Ltd. (supra). Relevant portion of the decision is reproduced as under:- "3. Proceedings were initiated against the appellant by way of issuance of the show cause notice proposing to reject the said claims on the ground that the duty once having been paid by the assessee cannot be refunded by way of subsequent claims made by the assessee, when they have not opted for provisional assessment during the relevant period. Accordingly, the original adjudicating authority rejected the refund claim totally amounting ....

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.... collected stands paid back to the customer by way of issuance of credit note or by adjustments in the subsequent bills, principles of unjust enrichment become inapplicable, thus entitling the assessee to claim refund. This was specifically observed so in the decision of the Tribunal in the case of IBP Ltd. referred (supra). To the same effect is another decision of the Tribunal in the cases of Karnataka Vidyuth Karkhane Ltd. v. CCE&ST, Bangalore-II - 2015 (327) E.L.T. 658 (Tri.-Bang.) and Bharat Bijlee Ltd. v. CCE, Belapur - 2010 (262) E.L.T. 369 (Tri.-Mumbai). 7. As against the above decisions, ld. DR for the appellant relied upon the Tribunal's decision in the case of Munjal Auto Industries v. CCE&ST, Vadodara - 2014 (307) E.L.T. 577 (....