BOC INDIA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THE appellants are manufacturers of industrial/chemical gases. Tclear the goods on payment of duty, to their depots, from where the goods are marketed. During the period July, 2000 to December, 2003, the payments of duty on the clearances from their factory to depots were made on the basis of an average price based on the contemporaneous prices at which the goods were sold at the depots. According to the appellants such payments were provisional till the exact prices at which the goods were sold from depot were available. The lower authorities have accepted that the assessments made by them were provisional for the period July, 2000 to March, 2003. In respect of the period April to December, 2003, the claim of the assessee that their clearances were provisionally assessed has not been accepted. It is submitted by the authorised representative of the company today that an application for provisional assessment under Rule 7 of Central Excise Rules, 2002 in respect of sales effected for the financial year 2003 -04 was made to the jurisdictional Deputy Commissioner of Central Excise on 16.04.2003 and that the same was rejected by the Deputy Commissioner as per letter dated 08.12.2003. Copies of the said application and the reply thereto have been produced by the representative and we have perused the same. It appears from these documents that the assessments for the period April to December, 2003 have been treated by the department as final. The decision communicated to the assessee in the letter dated 08.12.2003 of the Deputy Commissioner has not been appealed against. In the circumstances, the appellants' claim of provisional assessment for the period April to December, 2003 cannot be sustained. Appeal No. E/1128/2005 pertains to this period. In this appeal, the challenge is against a demand of duty of Rs. 64,575/ - as also against rejection of claim for refund of duty of Rs. 1,04,234/ -. Since the assessments done by the assessee in respect of the goods cleared from their factory to the depot during the above period were final, neither of the challenges would be sustainable. In the result, Appeal No. E/1128/2005 fails and the same is dismissed.

(2.) IN respect of Appeal No. E/1129/2005, which pertains to the period April, 2002 to March, 2003 and in respect of Appeal No. E/5/2006, which pertains to the period July, 200 to March, 2002, the provisionality of assessments made by the assessee is not in dispute. In Appeal No. E/1129/2005, the challenge is against a demand of duty of Rs. 1,35,248/ - as also rejection of claim for refund of duty of Rs. 2,65,544.45. In the remaining appeal, a demand of duty of Rs. 1,68,212/ - and rejection of refund claim of Rs. 4,39,884/ - are under challenge. In each of these appeals, the demand of duty and the refund claim arise out of the finalisation of assessments based on correct depot prices. Where the correct depot price was higher than the average price adopted for provisional assessment, demand arose. Where the correct depot price was lower than the average price adopted for provisional assessment, refund claim arose. As the provisional nature of assessment is not in dispute, this is a matter which has to be dealt with by the original authority for re -quantification of the net amount due to the assessee. If, for a given period, a demand of duty is confirmed against the assessee while a refund claim is allowed to them, one should be set off against the other and, accordingly, the liability of the assessee should be quantified. In each of thee appeals, we find that such set -off has not been allowed and further that the refund claims have been rejected on the ground of non -production of depot invoices. The company's representative has submitted today that they are possessed of all the relevant depot invoices covering the period July, 2000 to March, 2003. In the circumstance, we are of the view that the original authority should take a fresh decision in each case, after giving the assessee a reasonable opportunity of adducing evidence in support of their refund claims. Hence the orders passed by the lower authorities are set aside and these 2 appeals are allowed by way of remand. The original authority shall pass fresh orders after giving the assessee a reasonable opportunity to produce all the relevant invoices in support of their refund claims as also to be personally heard.