COMMISSIONER OF CENTRAL EXCISE Vs. IDL INDUSTRIES LTD.

JUDGEMENT

(1.) THE instant appeals have been filed by the Revenue against the order passed by the Commissioner appeal No. 124/B -II/2003 dated 11.11.2003. Both these appeals carry the same order -in -appeal when this question was raised why two appeals have been filed by the Revenue against the same order -in -appeal vide this Bench on 07.11.2005. The Ld. JDR asked time for the same to reply. When this case came up on 26.11.2005 he again requested time for four weeks to give the reply. Today also there is no reply from the Revenue why two appeals have been filed against the same order -in appeal.

(2.) THE short issue involved in this appeal is whether the Respondents are entitled to the refund claim of duty paid in excess by them during the period from April 1988 to March 1999, when the refund claim was filed by the appellant on 15.12.99. The Respondent's contention is that the said refund claim has arisen on account of price variation in the rate contract entered by them with their customer. The Revenue's contention is that the Commissioner (Appeals') observation that the assessments have to be treated as provisional is not correct. On a question from the Bench as to on what date the RT -12 returns have been finalised by the Revenue. Ld. JDR could not reply. However, it has been observed in the Order -in -Original that the Respondent have taken the plea that the assessment were provisional in the RT -12 returns. In this case the Provisional Assessment Order for the period 1998 -99 was received by the Respondent after 11th October, 1999 and the Respondent had filed the refund claim on 15.12.1999. Therefore the refund claim was filed within two months of the said order. It is not barred by limitation.

(3.) HEARD Shri A. Hore, Id. JDR. He reiterates the ground of appeal filed by the Revenue. He submits that there was downward revision of the prices after the clearance and the Respondent had paid duty on the value they realized from the buyers. Hence he contends that question of issuance of credit notes to the buyer is immaterial. He also relies on this Bench decision in the case of Commissioner of Central Excise, Madras v. Addison and Co. .