JBM INDUSTRIES LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Heard both sides.

(2.) Appellant filed this appeal against the order -in -appeal whereby the refund claim filed by the appellant was rejected on the ground that the refund claim is time -barred, as there was no order for provisional assessment under Rule 9B of the Central Excise Rules. The Commissioner (Appeals) also held that appellant failed to show that Burden of duty has not been passed on to the customer, therefore, the refund is hit by the principles of unjust enrichment.

(3.) The contention of the appellant is that they are manufacturing LPG cylinder and they were supplying to the oil companies under a contract and there is a price variation clause in the contract. Based on these, appellant made a request to the jurisdictional Assistant Collector vide letter dated 26th March 1999 for treating the assessment as provisional till the finalisation of the price. The contention of the appellant is that on this request, revenue has not taken any action. On finalisation of the price, the appellant filed a refund claim on the basis that the duly was paid on the higher price. The lower authorities wrongly rejected the refund on the ground that there was no order of provisional assessment hence the refund is time -bar. The appellant contended that reliance on the decision of the Tribunal in the case of Hindustan Wires Ltd. v. C.C.E., Delhi -II, 2003 (151) E.L.T. 679 by the Commissioner is not justified as in the case of Hindustan Wires Ltd., there was no request made by the assessee for making provisional assessment under Rule 913 of the Central Excise Rules. In the present case appellant made a specific request for provisional assessment, therefore, the ratio of the decision in the case of Hindustan Wires Ltd. is not applicable to the facts of the present case.