COMMISSIONER OF CENTRAL EXCISE, COCHIN Vs. TELK LTD.

JUDGEMENT

(1.) IN all these batch of appeals, the revenue is aggrieved with concerned OIAs 563/02 to 567/02, 663/02, 664/02 dt. 31 -12 -2002. The issue involved in all these appeals is as to whether the assessee is entitled for refund of higher duty paid by them. The appellants had entered into a contract with their suppliers and one of the terms of the agreement was that on refixation of prices, the duty will be paid accordingly. The prices were refixed resulting in a lower duty and hence they filed the refund in cases where they had paid excess duty. The original authority rejected their prayer on the ground that provisional assessment should have been resorted to and as there was no provisional assessment the claim for refund was not justified. The Commissioner noted that the refund claim has been filed within time and that there was a clause for price variation in the agreement. He has also noted that the revenue has also demanded higher duty where the prices are escalated and as noted in the OIO passed by the terms of the price variation clause in the agreement and as a result refund is eligible. He has directed the authorities to grant refund subject to the provisions of Section 11B of the Act. Learned DR submits that in the absence of provisionality in the assessment, the question of filing refund claim does not arise and the OIO has rightly rejected the refund claim. Learned counsel defends the order and submits that in terms of price variation clause, the revenue is also entitled to recover higher duty and the same has been dealt by the revenue in their own case. He submits that refund pertains to all claims which have been filed within time. It is his contention that there is no need to keep the assessments provisional and refund can be filed otherwise, the provision of refund under Section 11B of the Act would become redundant.

(2.) ON a careful consideration, we find that the Commissioner has examined the issue on all aspects of the matter. The findings entered into by the Commissioner is legal and proper. As the assessee were clearing transformers to their customers as per terms of contract which contain price variation clause subsequent to the clearance of the goods and payment of duty, the customers reduce the price of the transformers in accordance with the terms of the contracts. Therefore, the assessee claimed refund of the excess duty paid. The claim was pertaining to all those invoices which were within time period as laid down in Section 11B of the Act. The finding recorded by the Commissioner that there was no need to resort to provisional assessment as revenue also has claimed higher duty in terms of the price variation clause whenever price has increased is a correct finding. There is no merit in these appeals and the same are rejected.