RAMA VISION LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE Order impugned in this appeal has been passed pursuant to this Tribunal's Final Order of remand No. 1053/99 -A, dated 28 -7 -99. The operative portion of that order reads as under:

(2.) THE issue involved was the claim of the appellant for refund of over Rs. 8 lakhs which had been paid during the period 1995 -96. In the impugned order, the Commissioner (Appeals) has rejected the refund claim as being time -barred.

(3.) THE contention of the appellant is that the finding that the refund claim was time -barred is entirely illegal inasmuch as the original payment of duty was provisional. During the hearing of the case, learned Counsel for the appellant took us through the relevant records and pointed out that impugned order itself had noted at Para 4(i) that "The provisional assessments for the year 1995 -96 were finalised on 27 -1 -1997". Learned Counsel for the appellant pointed out that the appellant had filed the refund claim before finalisation of the assessment. He also referred to the appellant's letter dated 11 -6 -96 to the Assistant Commissioner of Central Excise stating that the refund claim has been filed "as directed by your office". The learned Counsel further pointed out that when the provisional assessment was subsequently finalised, issue of discount already raised in the refund application was not considered at all and only the other issue relating to reduction of freight element from the price was considered. Learned Counsel also pointed out that the appellant's refund claim related to the deduction of discount from the sale price which is a settled matter. It was submitted that whatever be the name under which they are known discounts are required to be deducted from the sale price for the purpose of determining the assessable value of the goods. Learned Counsel has also submitted that the repeated rejection of legitimate claim of refund in two rounds of proceedings has caused the appellant great loss, the amount related to the excess duty paid during the period 1995 -96.