COMMISSIONER OF CENTRAL EXCISE BENGALURU-I COMMISSIONERATE Vs. INDIAN TELEPHONE INDUSTRIES LIMITED DOORAVANINAGAR

JUDGEMENT

(1.) The Appellant/Revenue-Commissioner of Central Excise has filed these appeals u/s. 35G of the Central Excise Act, 1944 (for short 'Act') against the Respondent/assessee - M/s.Indian Telephone Industries Limited (a Central Government Public Sector undertaking) purportedly raising the substantial question of law about the adjustment/refund of the excess provisional duty paid by the Respondentassessee.

(2.) The question as raised is whether such a refund/adjustment deserves to be made under erstwhile u/r. 9B(5) of the Central Excise Rules, 1944 or the Respondent-assessee has to claim such refund by adopting the procedure u/s.11B of the Act establishing before the Revenue Department that the incidence of duty has not been passed on to the customers, to avoid 'unjust enrichment' to the Respondent-assessee by making such refund/adjustment.

(3.) The Respondent-assessee, a Government of India Undertaking, under the contract are the manufacturers and suppliers of telecommunication equipments to the Department of Telecommunication (DOT) another Central Government Department which later on became BSNL again a Government of India Undertaking during the relevant period of 1998-99 to 1999-2000 and at the time of removal of the goods and sale thereof to the Department of Telecommunication/BSNL but since the final price of the goods sold were to be determined under the contract between the Respondent-assessee and the purchasing Government Department of DOT/BSNL, the goods were allowed to be cleared on the basis of the provisional assessment and payment of provisional duty by the Respondent-assessee for which Rule 9B of the Rules as it stood then required determination u/r. 9B(5) of short duty, if any paid and the adjustment or refund of excess provisional duty, an order to be passed under Rule 9B(5) of the said Rules.