COMMISSIONER OF CENTRAL EXCISE Vs. GEHRING INDIA LTD.

JUDGEMENT

(1.) THE Revenue is aggrieved by the order of Commissioner of Central Excise (Appeals), Allahabad who has held that the claim, dated 13 -3 -1993 for refund of Central Excise duty paid on Honing Machines supplied to Ordnance Factories, due to price escalation by the supplementary invoice, dated 22 -4 -1993 has been filed within the statutory period of limitation. According to the Revenue, since the date of payment of duty is interlinked with the date of removal of the goods, the date of payment should be taken as 23 -12 -1992 when the goods were removed vide GP1 No. 7 and refund claim should have been filed on 23 -6 -1993, and the period of limitation cannot be computed from the date of payment vide supplementary invoice, and therefore, the refund claim is time barred.

(2.) WE have heard both sides. We note that the contract between the appellant and the Ordnance Factory at Kanpur included a price variation clause on account of customs duty and foreign exchange rate variation, that the DCS and D allowed price escalation vide its letter, dated 25 -5 -1993. Duty was paid on account of price escalation on 22 -4 -1993 and the respondents are seeking refund of part of the amount paid on 22 -4 -1993. We agree with the respondents that the relevant date for refund is the date of payment of duty vide supplementary invoice and since the refund claim has been filed within a period of six months from such date, it is not barred by limitation.

(3.) IN the result we hold that the refund claim is admissible subject to the bar of unjust enrichment contained in Section 11B of the Central Excise Act, 1944.