AI Drafter 
TaxTMI 
TaxTMI 
2021 (9) TMI 1098
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....:- During the period the funds are outstanding, and in order to enable NMPT to repay the funds along with interest thereon in accordance with the repayment schedules under the respective agreements, the wharfage charges payable by MRPL to NMPT will be based on (a) actual operation and maintenance cost, (b) sharing of administrative and general overheads, (c) depreciation, (d) interest on loan, and (e) some percentage of capital employed to be fixed by the Government. The wharfage charges will be subject to yearly review and consequent adjustment depending on the tonnage involved. Similar treatment was given to the other major clients like HPCL, IOCL and BPCL. 2.2. In order to service the loan and to meet the operational expenses the respondent port collects wharfage from MRPL and other oil companies. The wharfage rate is fixed at an adhoc rate based on projected traffic and projected expenditure. The tonnage handled during a financial year is booked at this adhoc rate and a bill is raised on the oil companies at the time when the import application or the export application is filed by the oil companies. Service tax is charged and collected upfront at the time of rai....
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....the books for the year 2005-06 were closed in June 2006, the final wharfage rate after taking the actual expenses incurred by the respondent was arrived at Rs. 30.03 PMT. On an overall reconciliation, the respondent found that as a result of further revision of wharfage from Rs. 38 PMT to 30.03 PMT, an excess payment of service tax amounting to Rs. 1,52,54,149/- has been collected from oil companies and also remitted to the government during the year 2005-06. The sum of Rs. 60 lakhs paid by the respondent by way of abundant caution was claimed to be excess service tax paid. The respondent accordingly filed claim on 22.03.2007 for a total sum of Rs. 2,12,54,149/-. The refund claim filed was rejected by the Order-in-Original dt. 20.12.2007. The amount of 1,52,54,149 was rejected on the ground that the same was filed beyond the limitation prescribed under Section 11B of the Central Excise Act, 1944. It was also held that the respondent had not complied with the procedurals prescribed under Rule 6 of the Service Tax Rules, 1994 for opting provisional assessment. Therefore the instant case was not that of provisional assessment. The amount of Rs. 60 lakhs was rejected on the ground that....
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....y in the case of Maharastra Cylinders Pvt. Ltd. Vs. CESTAT, Mumbai [2010(259) ELT 369 (Bom.)]. 3.2. She further pointed out that a corrigendum to the show-cause notice dt. 29/08/2007 was also issued by which a specific charge regarding inadmissibility of refund of Rs. 60 lakhs was also raised against the appellant. She argued that the same corrigendum has not been considered by the Commissioner(Appeals) in his order. 4. Learned counsel for the respondent pointed out that all the import and export applications specifically contain a remark that duty has been paid under protest and therefore the assessment should be considered as provisional. He relied on the following decisions of Tribunal:- i. CCE, Tirupati Vs. Kurool Cylinders Pvt. Ltd. [2007(219) ELT 473 (Tri. Bang.)] ii. Telephone Cables Ltd. Vs. CCE, Chandigarh [2003(154) ELT 237 (Tri. Del.)] iii. Keltech Energies Ltd. Vs. CCE, Mangalore [2006(196) ELT 282 (Tri. Bang.)] iv. PTC Industries Ltd. Vs. CCE, Jaipur-I [2016(340) ELT 563 (Tri. Del.)] He argued that in the aforesaid decisions, it was held that where the price is not final at the time of provision of services or supply of good....
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.... it was held :- "12. From the above, 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 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." The said decision was upheld by Hon'ble Apex Court as reported in 2008(221....
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....rovisional merely because some appeal or other proceeding is pending, questioning the classification involved therein. As a matter of fact, this Court in the case of Coastal Gases & Chemicals Pvt. Ltd. v. Asstt. C.C.E., Visakhapatnam (supra) while considering the judgment in Samrat International case (supra) held thus : "On the facts of that case, however, this Court had held that the payment of duty which was made by the appellants in that case was provisional and the procedure under Rule 9B had been followed. We have not been shown any material on record to indicate whether the appellants in the present case had cleared carbon dioxide manufactured by them by following the procedure laid down in Rule 9B or that the payment of excise duty which the appellants had made during the relevant period was provisional." 12. From the above, it is clear that to establish that the clearances 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....