SWASTIKA CONCAB (I) PVT. LTD. Vs. CCE

JUDGEMENT

(1.) THE facts of the case, in brief, giving rise to this appeal are that the appellant, a manufacturer of various types of conductors, entered into contracts with Ajmer Vidyut Vitran Nigam Limited and Jaipur Vidyut Vitran Nigam Limited for supply of ACSR conductors. There was a price variation clause in the supply contracts. As per Clause 4 of the supply order dated 31/5/05 issued by Ajmer Vidyut Vitran Nigam Limited (AVVNL), the price of the conductor, as mentioned in Clause 2 of the supply order, was variable, based on the average price of ex -prime producers of EC Grade Aluminium Wire Rods and High Tensile Galvanized Steel Wire. There was a similar clause in the supply order dated 08/07/05 issued by Jaipur Vidyut Vitran Nigam Limited (JVVNL). The price variation could be positive or negative. The supply of conductor was made during the period from June 2005 to August 2005 and during this period, the goods were cleared by the Appellant on payment of duty, at the prices mentioned in the contract. However, subsequent to the supply of the goods the, buyers AVVNL and JVVNL decreased the price and adjusted the excess amount paid from the payment for the subsequent supplies. The Appellant filed a refund claim on 22/06/06 for refund of amount of excess paid duty of Rs. 75,526/ - and the Assistant Commissioner vide Order -in -Original dated 20th September 2006 rejected the refund claim for an amount of Rs. 38,745/ - as time barred and sanctioned the claim for the balance amount of Rs. 36,192/ - but credited the same to the consumer welfare fund in terms of the provisions of Section 11B(2) of Central Excise Act on the ground that this amount is hit by unjust enrichment. The Appeal filed by the Appellant before the Commissioner (Appeals) was dismissed vide the impugned order -in -appeal No. 283/GRM/CE/JPR -I/2006 dated 28/11/06. It is against this order that the present appeal has been filed.

(2.) HEARD both the sides.

(3.) THE first point of dispute in this case is as to whether because of price variation clause in the supply orders placed by JVVNL and AVVNL on the Appellant company, the assessment of duty on the goods cleared by the Appellant against these supply orders is to be treated as provisional. There is no dispute about the fact that neither the appellant had written to the Jurisdictional Assistant Commissioner for provisional assessment nor any such order in this regard has been passed by the Jurisdictional Assistant Commissioner. The appellant in support of the plea that the assessments have to be treated as provisional, rely upon the judgments of the Tribunal in the cases of Telephone Cables Ltd. v. CCE, Chandigarh (supra), the Government's SLP which has been dismissed by the Hon'ble Supreme Court and also the judgments of the Tribunal in the cases of CCE, Tirupati v. Kurool Cylinders Pvt. Ltd. (supra) and Rajasthan Electronics & Instruments Ltd. v. CCE, Jaipur (supra). In all these cases, the Tribunal has held that when a sale contract has price variation clause, the assessment in respect of clearances made against such sale contracts are to be treated as provisional even though procedure prescribed under Rule 9B of Central Excise Rule 1944 was not followed. Though against the Tribunal's judgment in the case of Telephone Cables Ltd. v. CCE, Chandigarh (supra), the Union of India filed an SLP before Hon'ble Supreme Court, it is seen that SLP was dismissed as withdrawn and thus, the dismissal of the SLP by Hon'ble Supreme Court was not on merit or by a detailed order. As against this, Hon'ble Supreme Court in the case of CCE, Calcutta v. Hindustan National Glass and Industries Ltd. (supra) has held that to establish that the clearances were on provisional basis an order under Rule 9B of the Erstwhile Central Excise Rules, 1944 and the payment of duty on provisional basis is necessary. I find that this decision of the Hon'ble Supreme Court is based on its earlier decision in the cases of Metal Forgings v. Union of India reported in : 2002 (146) E.L.T. 241 (S.C.) and Coastal Gases and Chemicals Pvt. Ltd. v. Asstt. CCE, Visakhapatnam reported in : 1997 (92) E.L.T. 460 (S.C.). The decision of Hon'ble Supreme Court, in view of the provisions of Article 141 of the Constitution is binding on the Courts and Tribunals. In view of the settled legal position on this issue, following the Hon'ble Supreme Court's judgments, I hold that since in this case, there was neither any application from the Appellant for provisional assessment nor any such order under Rule 7 of the Central Excise Rules, 2002, [corresponding to Rule 9B of the Erstwhile Central Excise Rules, 1944] had been passed by the Assistant Commissioner, the assessments cannot be treated as provisional, even though the supplies were against the contract containing price variation clause and, therefore, the refund claim would be subject to the limitation period prescribed under Section 11B of the Act. The rejection of refund claim of Rs. 38,345/ - on the ground of time bar is therefore upheld.