COMMISSIONER OF CENTRAL EXCISE Vs. HINDUSTAN ENGINEERING AND

JUDGEMENT

(1.) HEARD Shri I. Mariana, learned J.D.R. for the Revenue on the appeal filed by the Commissioner of Central Excise, Kolkata -IV against Order -in -Appeal No. 09/KOL -I/2003 dated 31.10.03 passed by the Commissioner of Central Excise (Appeal -IV), Kolkata. He submits that the brief facts of the case are that the respondent company herein, M/s. Hindustan Engineering and Industries Ltd. had submitted a Refund Claim for Rs. 9,02,449.00 (Rupees nine lakh two thousand four hundred and forty -nine) under Section 11B of the Central Excise Act, 1944. They cleared the CMS Crossing, a railway track material falling under sub -heading No. 7302.90 of C.E.T.A. to the Indian Railway Board. Subsequently, after receipt of the goods, the Railway Board reduced the price of the goods. The said respondents claimed refund Page 0269 of the excess duty paid on the differential value of the goods. The above refund claim was rejected by the lower authority. The Commissioner (Appeals) allowed the appeal of the respondent company, against which the Revenue is in appeal before this Tribunal. He submits that the Commissioner (Appeals') observation upholding the contention of the assessee on the ground that the price was provisional does not hold good at all, as they did not resort to provisional assessment of such goods at the time of clearance. In the absence of formal Order under Rule 9B of the erstwhile Central Excise Rules, 1944, there cannot be a provisional assessment. He also submits that the excess duty paid by the assessee during the period of clearance from their factory -gate is final and no deviation from the value is permissible at the subsequent stage. He has relied upon the decision of the West Zonal Bench of the Tribunal in the case of Commissioner of Central Excise, Nagpur v. Maharashtra Cylinder Ltd. . In view of this, he submits that the Order passed by the Commissioner may be set aside and the appeal filed by the. Revenue be allowed.

(2.) HEARD Shri S.K. Roychowdhury, learned Advocate for the respondent company. He submits that in this case, the goods were cleared on 7.10.99 and the Refund Claim was filed on 7.4.2000. Thus the Refund Claim was filed within the statutory time -limit of six months available under Section 11B of the Central Excise Act, 1944. He further submits that since the Refund Claim has been filed within six months of the clearance of the goods, it is not required under the law that the assessment should be provisional. He submits that the Contract under which the impugned goods were supplied, contained the clause that the "rates are provisional and subject to change with the rates to be decided in fresh tender No. Track 9 of 1994 under finalisation." In support of his contention, he has submitted a decision of the Tribunal in Order No. A -1319/Cal/2001 dated 12.12.2001 in their own case.

(3.) I have heard both sides. I find that the Commissioner (Appeals) in his impugned Order has observed as follows: