INDIAN LPG CYLINDERS AND TIRUPATI Vs. CCE

JUDGEMENT

(1.) IN these three appeals, no one has appeared for the appellants though they were duly notified for final hearing and the notice of date of hearing was served on them. Since the appeals involve common questions, they have been heard together.

(2.) THE learned advocate Shri P.R. Mullick has not appeared for hearing though earlier he had sought an adjournment requesting for listing the appeals for hearing in the week commencing from 10.7.2006. Though the matter was called out on 18th August, 2006 and has been heard continuously since then, no one has cared to appear till now. The appeals are heard by the assistance of the learned Authorized Representative of the department who has taken the court through the entire record and pointed out the contentions raised by the assessees and dealt with them in his arguments.

(3.) APPEAL No. E/5176/04 has been filed by the appellant Indian LPG Cylinders challenging the order of the Commissioner (appeals) dated 5.7.2004 upholding the Order -in -original dated 30.1.2003 by which the Deputy Commissioner rejected refund claim of Rs. 6,69,066/ - made by the appellant. This appellant had supplied gas cylinders to Bharat Petroleum Corporation Limited (BPCL) from 1.7.1999 to 31.10.2000 on provisional contract price. BPCL had thereafter revised the provisional price by their letter dated 31.10.2000 with effect from 1997. The appellants, therefore, preferred refund claim by their letter dated 21.8.2002 claiming refund of duty of Rs. 6,69,066/ -. The department thereafter issued show cause notice dated 18.9.2002 requiring the appellants to show cause as to why their refund claim should not be rejected on the ground that the appellant was well aware of the fact and it should have made a request for provisional assessment since price was subject to change in future and that the claim for the entire period filed on 27.8.2002, being after a lapse of more than one year from the date of the invoice, was time barred. It was alleged that the appellant has failed to prove that they had not passed on the full incidence of duty to the BPCL and that this was not a case of unjust enrichment. The Deputy Commissioner on the basis of the material on record held that the plea of the appellant that the price of cylinder being provisional, the assessment should be deemed to be provisional under Rule 9B(1) of the Central Excise Rule, 1944, was not correct. It was held that the communication by the department advising the party that since sale prices were provisional and yet not finalized, the party may file the refund claims only after the finalization of prices, was general in nature and did not constitute any acceptance on the part of the department that the party had complied with the rules governing provisional assessment of duty or had followed the procedure laid down under Rule 9B. It was further held that the appellant had not shown that the amount of Rs. 21,57,7447 - deducted against document No. 600011166 dated 10.11.2000 did not indicate that the deductions were made consequent to finalization of the prices of cylinders involved in this refund claim. The appellant had not submitted the copy of the said document, and it was held that in the absence of such details, it was next to impossible to establish a co -relation to the effect that the deductions were actually made by BPCL consequent to finalization of prices. Relying upon Section 12B of the Central Excise Act, 1944 and holding that the assessable value declared by the assessee represented the actual value of the goods prevalent at the time and place of removal which was realized by the appellant from the BPCL, it was held that the bar of unjust enrichment truly applied in the present case. It was further held that the limitation of one year was applicable, because the duty was not paid under protest and no protest letter was lodged. It was, therefore, held that the refund claim made on 27.8.2002 in respect of the period 1.7.1999 to 31.10.2000 when the invoices were issued and duties were paid, was time barred. The claim was, therefore, rejected. The Appellate Commissioner also held that the claim was time barred being not filed within the stipulated period of one year. He also held that the appellant had not produced any evidence to establish the co -relation that the amount deducted by the BPCL related to invoices under which excess duty was paid. It was found that the assessee was duty bound to make a request for provisional assessment under Rule 9B and that not being done, the claim could not be entertained. He relied upon the ratio of the decision in A. Infracture Ltd. v. CCE. Jaipur , in support of this conclusion. He also relied upon the decision in the case of Rajasthan Cylinders and Containers Ltd. v. CCE, Jaipur , holding that discussing the identical issue, the Tribunal has held that mere mention in the RT -12 return that there is provisional assessment, does not make the assessment provisional. The Tribunal rejected the appeal on the basis of the decision of the Apex Court in Metal Forgings case in which it was observed mere mention in RT -12 return that there is a provisional assessment in respect of the specific invoices, does not make the assessment provisional and there has to be an order under Rule 9B of the Rules and material to show that the goods were cleared on the provisional basis.