COMMISSIONER OF CENTRAL Vs. HYDERABAD CYLINDERS PVT. LTD.

JUDGEMENT

(1.) THE Revenue has filed this appeal against the Order -in -Appeal No. 54/2004 (H -III) CE dated 31.03.2004, passed by the Commissioner of Customs and Central Excise (Appeals), Hyderabad.

(2.) THE Respondents are manufacturers of LPG Cylinders. They had contract with various Oil Companies viz. M/s IOCL, M/s BPCL and M/s HPCL for supply of cylinders. Initially they cleared the cylinders on payment of duty based on the previous years price. However, the price of the cylinders was reduced for the period from 1.7.1999 to 31.10.2000. Since they had paid duty on higher value, they claimed refund. The Deputy Commissioner informed them that the refund claimed is time barred for the period from 1.7.1999 to 16.7.2000. Therefore, the appellants submitted another refund claim for the period from 17.7.2000 to 31.10.2000. They have contended that due to ignorance, they agreed that the refund claim for the period from 1.7.1999 to 16.7.2000 is time barred. The Deputy Commissioner in his order rejected the refund claim for the period from 17.7.2000 to 31.10.2000 also on the ground that they had not opted for provisional assessment and as there is no scope to reverse the assessment already made. The appellants had approached the Commissioner (Appeals) who allowed the appeal of the appellants relying on the following decisions:

(3.) THE Revenue is aggrieved over the order of the Commissioner (Appeals) on the following grounds: Hon'ble Supreme Court of India in the case of M.R.F. Ltd. v. Collector of Central Excise, Madras, , held that once the assessee has cleared the goods on the classification and price indicated by him at the time of removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to the Central Excise Department in so far as the liability to excise duty payment is concerned. The duty is chargeable at the rate and price when commodity is cleared at factory gate and not on the price reduced at a subsequent date is unexceptionable. The subsequent fluctuation and the prices of commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. Roll back in the price would not entitle the appellant to claim a refund on the price differential unless it is shown that there is an agreement in this behalf with the Government and the later had agreed to refund the Excise duty to the extent of reduced price. Further the Revenue relied on the following decision of the Tribunal: