w w w . L a w y e r S e r v i c e s . i n



Vijay Prestressed Products Pvt. Ltd V/S CCT, Visakhapatnam - G.S.T.


Company & Directors' Information:- P P PRODUCTS PVT LTD [Active] CIN = U32305WB1991PTC051091

Company & Directors' Information:- VIJAY PRESTRESSED PRODUCTS PVT LTD [Active] CIN = U74999AP1982PTC003751

Company & Directors' Information:- VIJAY INDIA PRIVATE LIMITED [Active] CIN = U25199DL1998PTC096860

Company & Directors' Information:- GST PRIVATE LIMITED [Strike Off] CIN = U27104MH2002PTC136410

Company & Directors' Information:- G S T PRODUCTS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U31909TN2006PTC059575

Company & Directors' Information:- G S PRODUCTS LIMITED [Strike Off] CIN = U25191UP1989PLC010483

Company & Directors' Information:- VIJAY PRODUCTS PRIVATE LIMITED [Active] CIN = U51909MH2012PTC232473

    Appeal Nos. E/30498, 30499/2018 (Arising out of Order-in-Appeal No. VIZ-EXCUS-001-APP-258-17-18 dated 28.02.2018 passed by Commissioner of Customs (Appeals), Visakhapatnam) and Final Order Nos. A/30753-30754/2018

    Decided On, 24 July 2018

    At, Customs Excise Service Tax Appellate Tribunal Regional Bench, Allahabad

    By, THE HONORABLE JUSTICE: P.V. SUBBA RAO
    By, MEMBER

    For Petitioner: N.V. Ramana, Advocate And For Respondents: Arun Kumar, Dy. Commissioner/DR



Judgment Text


1. These appeals are against Order-in-Appeal No. VIZ-EXCUS-001-APP-258-17-18 dated 28.02.2018. Heard both sides and perused the records. The appellant herein are manufacturers of concrete railway sleepers under an agreement with the Indian Railways. The agreement, inter alia, provides for a price variation of the sleepers subsequent to removal of goods from the factory. In other words a certain price is fixed at the time of clearance of the railway sleepers which is subsequently varied depending upon various factors which are not known at the time of clearance. Price variation is as per formula given in the agreement. Whenever the assessee removed the goods from the factory, he paid duty as per the provisional price. After the final price is known, they in turn pay the differential duty if prices are enhanced. In the present cases, the price has actually been reduced in terms of the contract. Therefore they filed refund claims for the excess duty paid. These refund claims were rejected by the lower authorities relying on the case law of MRF Ltd : 1997 (92) ELT 309 (SC)] in which the Hon'ble Supreme Court held that "once the assessee has cleared the goods on the classification and price indicated by him at the time of removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and not on the price reduced at subsequent date and further observed that the subsequent fluctuation in the prices of the commodity have no relevance whatsoever, so far as the liability to the excess duty is concerned." This judgment of the Hon'ble Supreme Court was followed in subsequent cases also. It is pertinent to point out at this stage that the assessments in the present case are done on a self-assessment basis and no provisional assessment has been resorted to.

2. Aggrieved, the appellant preferred an appeal before Commissioner (Appeals) who upheld the Order-in-Original and rejected the appeal. This appeal is against the impugned Order-in-Appeal.

3. Learned Counsel for the appellant has produced before me copies of their agreements which clearly provide for price variation formula in clause 13.2 of the agreement. Among others, factors to be considered are indices such as whole sale price index and consumer price index which will not be known at the time of clearance of the goods. He argued that whenever there is an increase in the price they have been paying differential duty in majority of cases and the department has never objected to payment of excise duty over and above what was calculated at the time of clearance from the factory gate. These are two rare occasions where prices actually fell. Therefore, they filed an application for refund. It is his contention that they have not sought provisional assessment under pressure from the departmental officers who want assessments to be kept final. It is his further contention that all refund claims were filed within normal time limit under Sec. 11B.

4. Learned Departmental Representative on the other hand reiterated arguments made in the Order-in-Appeal and said that once the goods leave the factory gate, subsequent fluctuations of prices will not matter as far as the valuation rules are concerned as laid down by the Hon'ble Supreme Court in the case of MRF Ltd. (supra). It is his contention that there is nothing on record to show that the appellant was prevented from opting for provisional assessment by the department. If the final price is not known at the time of clearance, assessee could have sought and opted for provisional assessment.

5. Learned Counsel for the appellant relied on the case of CCE, Nagpur vs. Oriental Explosives P Ltd. [2008 (222) ELT 205 (Bom.)] in which the Hon'ble High Court of Bombay held that although assessment is not provisional, that by itself, could not dis-entitle assessee from claiming refund. He also relied on the case of PTC Industries Ltd. [2016 (340) ELT 536 (Tri.-Del.)] in which it was held that where there is price variation clause and the prices have been reduced subsequent to clearance, refund is admissible.

6. In both these cases the Hon'ble High Court of Bombay and Hon'ble CESTAT-Delhi, Principal Bench have distinguished these cases from the case of MRF Ltd. in which the Hon'ble Supreme court had held that post clearance fluctuations in prices do not alter the duty liability.

7. I have considered the arguments on both sides and perused the records. It is not in dispute that the assessment is not provisional. It is also not in dispute that there is price variation clause in the agreement. It is also not in dispute that whenever the prices have increased subsequent to clearance, assessee paid duty on differential amount. The only contention of the department is that the Hon'ble Supreme Court had held in the case of MRF Ltd. that post clearance reduction in price does not evade the duty liability. I have carefully gone through the MRF Ltd. case. This judgment was passed in a particular factual matrix. After the tyres were cleared from the factory gate, on advice from the Government, the tyre manufacturers reduced the prices of the tyres to relieve the pressure of inflation on the common man. They sought a reduction in excise duty on this account. The Hon'ble Supreme Court has held that once tax has been paid and goods are cleared from the factory gate, there is no question of varying that on basis of price variations post clearance. It is also found that this judgment was passed in the context of the valuation of goods under Section 4 of the Central Excise Act prior to 01.07.2000. During the relevant period, value was the normal price, i.e., price at which such goods were ordinarily sold in the course of whole sale trade at the time and place of clearance. There was paradigmatic shift in the valuation under Central Excise Act in 2000 when the valuation has been changed to "the value on each removal of goods shall be the price at which the goods are sold by the assessee". In other words, the concept of normal price has been replaced with the transaction price. There are no longer any price lists which are to be filed by the appellant/assessee or approved by the department. Every single invoice is a transaction by itself and has to be assessed as such. In the present case, the clearances were done as per the new section 4 of the Central Excise Act. In each of those clearances, the invoice price is known - provisional at the time of clefarance and final after the price is adjusted. The assessee could have opted for provisional assessment but he did not do so. Nevertheless once the goods' transaction price is revised upwards or downwards for each clearance, the duty has to be paid accordingly. Wherever there was an upward revision in the price, the assessee has been payi

Please Login To View The Full Judgment!

ng differential duty and when there is a revision in price, he will be entitled to refund provided it is within the time limit prescribed under Sec. 11B. If the assessee had opted for provisional assessment he could have claimed refund within one year from the finalization of provisional assessment but in this case he has claimed the refund within one year from the date of clearance of goods since the assessments were not provisional. The ratio of the cases of PTC Industries Ltd. (supra) and Oriental Explosives (supra) squarely apply to the present case. I therefore find that the assessee is entitled to refund and the Order-in-Appeal is liable to be set aside. The impugned Order-in-Appeal is set aside and the appeals are allowed with consequential relief.
O R







Judgements of Similar Parties

08-09-2020 Sidharth Vijay Shah Versus Union of India & Others High Court of Judicature at Bombay
04-09-2020 Vijay Singh Yadav Versus Ajay Shanker Rai High Court of Judicature at Allahabad
03-09-2020 Rashid Khan Pathan & In The Matter Of: In Re: Vijay Kurle & Others Supreme Court of India
31-08-2020 Dr. Vijay Mallya Versus State Bank of India & Others Supreme Court of India
19-08-2020 Vijay Cotton & Fibre Co., Maharashtra Versus New India Insurance Company Ltd., Maharashtra & Others National Consumer Disputes Redressal Commission NCDRC
17-08-2020 National Urban Cooperative Bank Ltd., Uttar Pardesh & Another Versus M/s. Khandelwal Rubber Products Pvt. Ltd., Uttar Pradesh & Another National Consumer Disputes Redressal Commission NCDRC
14-08-2020 P.P. Suresh Kumar, Managing Director, Kerala Communications Cable Ltd., Kochi & Another Versus The Deputy Director, Directorate General of GST Intelligence (DGGI), Thiruvananthapuram & Others High Court of Kerala
11-08-2020 Vijay Pal Singh Versus Union of India & Others High Court of Delhi
07-08-2020 Vijay Ramswarup Sharma Versus State of Gujarat High Court of Gujarat At Ahmedabad
05-08-2020 Doosan Infracore India Private Limited, Rep., by N. Krishnakumar Versus The Assistant Commissioner, Office of the Commissioner of GST and Central Excise, Chennai High Court of Judicature at Madras
04-08-2020 The Commissioner of GST & Central Excise, Chennai South Commissinerate, Chennai Versus M/s. Saksoft Ltd., Perungudi, Chennai High Court of Judicature at Madras
31-07-2020 National Insurance Co. Ltd. Through Rajesh Kumar Dy. Manager, New Delhi Versus Biking Food Products (P) Ltd., Telangana National Consumer Disputes Redressal Commission NCDRC
29-07-2020 R. Vijay Versus Shabeena Begum & Another High Court of Judicature at Madras
22-07-2020 Radheshyam Darsheema Versus Kunwar Vijay Shah & Others High Court of Madhya Pradesh
03-07-2020 Mohd. Quasim Versus P. Vijay Prakash High Court of for the State of Telangana
03-07-2020 Subhash Joshi & Another Versus Director General of GST Intelligence (DGGI) & Others High Court of Madhya Pradesh Bench at Indore
26-06-2020 Bismi Aquatic Products, Rep by its Partner, M. Ashraf Ali Versus The Superintending Engineer, Ramanathapuram Electricity Distribution Circle, TANGEDCO, Ramanathapuram & Another Before the Madurai Bench of Madras High Court
26-06-2020 U. Manikandan, Mani Poultry Farm, Annamooli, Palakkad Versus The Assistant Commissioner of State Tax, State GST Department, Special Circle, Palakkad & Another High Court of Kerala
17-06-2020 Ministry of Railways Through Divisional Commercial Manager Versus V. Vijay Kumar National Consumer Disputes Redressal Commission NCDRC
16-06-2020 Dr. Vijay Mallya Versus State Bank of India & Others Supreme Court of India
29-05-2020 Vijay Ganesh @ Vijay @ Kurangu Vijay Versus State of Tamil Nadu, Rep. by the Principal Secretary to Government, Home, Prohibition and Excise (IX) Department & Others Before the Madurai Bench of Madras High Court
27-05-2020 Ajay @ Vijay @ Babu Jaiswal, Chhattisgarh Versus State of Chhattisgarh High Court of Chhattisgarh
18-05-2020 Mohan Products Pvt. Ltd & Others Versus State Bank of India, Stressed Assets Recovery Branch, Raipur & Another High Court of Chhattisgarh
15-05-2020 Rahul @ Vijay Versus The State of Rajasthan Supreme Court of India
14-05-2020 Horlicks Limited & Another Versus Zydus Wellness Products Limited High Court of Delhi
08-05-2020 Virendra Kumar Versus Vijay Kumar & Others High Court of Judicature at Allahabad
07-05-2020 Vijay Kumar Agrahari Versus State of U.P. & Another High Court Of Judicature At Allahabad Lucknow Bench
04-05-2020 Re: Vijay Kurle & Others Supreme Court of India
04-05-2020 Air India Ltd. Through, Its General Manager (O) Versus Vijay Dhawan Delhi State Consumer Disputes Redressal Commission New Delhi
27-04-2020 RE : Vijay Kurle & Others Supreme Court of India
27-04-2020 Omprakash & Others Versus Vijay Dwarkada Varma In the High Court of Bombay at Nagpur
19-03-2020 State of Uttar Pradesh & Others V/S Vijay Shankar Dubey Supreme Court of India
13-03-2020 Sheetal Medicare Products Pvt. Ltd., Maharashtra Versus New India Assurance Co. Ltd., Maharashtra & Another National Consumer Disputes Redressal Commission NCDRC
12-03-2020 Vijay Kumar Singh Versus Rana Cooperative Housing Society & Others National Consumer Disputes Redressal Commission NCDRC
10-03-2020 The Commissioner of GST & Central Excise, Chennai Outer, Chennai V/S The Glovis India Private Limited, F-98, Kancheepuram High Court of Judicature at Madras
05-03-2020 Bimalkumar Manubhai Savalia Shareholder and Director of M/s Radheshyam Agro Products Pvt. Ltd, At-Sajiyavadar, Taluka: Amreli District: Amreli Versus Bank of India, Gujarat & Others National Company Law Appellate Tribunal
04-03-2020 Madhya Pradesh Housing & Infrastructure Development Board & Another Versus Vijay Bodana & Others Supreme Court of India
02-03-2020 In The Matter of:Living Consumer Products Private Limited Through its duly Authorized Signatory Jaideep Hotha Versus Play Games 24x7 Private Limited Through its duly Authorized Signatory Prabhu Vijayakumar National Company Law Appellate Tribunal
28-02-2020 Vijay Kishanrao Kurundkar & Another Versus State of Maharashtra & Others Supreme Court of India
27-02-2020 Prosound Products Partnership Firm, Rep. by its Partner Pradeep Ahuja & Another Versus John Enterprises, Chennai High Court of Judicature at Madras
24-02-2020 Roche Products (India) Private Limited & Others Versus Cadila Healthcare Limited & Others High Court of Delhi
24-02-2020 Vijay Anand & Another Versus Vedic Conclave Pvt. Ltd. & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
21-02-2020 M/s. Hwashin Automative India Pvt. Ltd., Sriperumbudur Versus The Deputy Commissioner of Central Excise, Poonamallee Division, (Not known as the Assistant Commissioner of GST & Central Excise, Irungattukottai Division), Chennai High Court of Judicature at Madras
19-02-2020 Vijay Soni Versus Anju @ Uma High Court of Rajasthan
18-02-2020 Jagdish Prasad Vijay Versus Niti Aaayog, Erstwhile, Planning Commission Through The Dy. Chairman, New Delhi & Others Central Administrative Tribunal Principal Bench New Delhi
18-02-2020 Vijay Mehta @ Bijal Mehta Versus State of Bihar High Court of Judicature at Patna
17-02-2020 Vijay Prakash Mishra Versus State of U.P. & Others High Court of Judicature at Allahabad
17-02-2020 M/s. Carenow Medical Prviate Limited, Rep. by its Director & the auth. Rep.T.Rajkumar Versus Rajesh Sodhi, The Principal Commissioner of GST & Central Excise, Coimbatore High Court of Judicature at Madras
13-02-2020 Harinarayan Sharma Versus Vijay Kumar Soni National Consumer Disputes Redressal Commission NCDRC
13-02-2020 Commissioner, Commercial Taxes U.P. Lucknow Versus M/s. Narain Vegetable Products Sitapur High Court Of Judicature At Allahabad Lucknow Bench
13-02-2020 Vijay Karia And Others V/S Prysmian Cavi E Sistemi Srl And Others Supreme Court of India
12-02-2020 M/s. Sharadha Terry Products Ltd., Coimbatore Versus Tamil Nadu Sales Tax Appellate Tribunal (Additional Bench), Commercial Taxes Buildings, Coimbatore & Another High Court of Judicature at Madras
10-02-2020 John Enterprises, Madurai V/S Prosound Products, Rep. by its Partner Pradeep Ahuja, Mumbai & Another High Court of Judicature at Madras
10-02-2020 M/s. Purple Products Private Limited, Mumbai Versus The Commissioner of Customs (Sea Port), Chennai & Others High Court of Judicature at Madras
06-02-2020 The State of Maharashtra Versus Siddharath @ Vijay Bhosale & Others High Court of Judicature at Bombay
06-02-2020 Vijay Kumar Mishra Versus State of U.P. & Another High Court of Judicature at Allahabad
05-02-2020 State Bank of India V/S Suvarnasari Venkateshwara Food Products and Others. Debts Recovery Tribunal Nagpur
05-02-2020 Vijay Kumar V/S M/s. TDI Infrastructure Ltd Haryana State Consumer Disputes Redressal Commission Panchkula
04-02-2020 Sameera @ ParutheekuzhiyilSameera, Proprietor Versus Reghu, Proprietor, Metro Paper Products, Athanikkal, Malappuram now Proprietor, Malappuram Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram
04-02-2020 The Union Bank of India V/S Vijay Distributors and Others. Debts Recovery Tribunal Aurangabad
03-02-2020 M/s. Phoenix Rubbers, Palakkad, Represented By Sakkeer Hussain, Managing Partner Versus The Commercial Tax Officer, State GST Department, Palakkad & Others High Court of Kerala
03-02-2020 Sutherland Mortgage Services INC, Cochin, Represented by Achutarama Gupta Nesthala Vizupu, Authorized Signatory, V.K. Gupta Versus The Principal Commissioner, Office of The Principal Commissioner of Customs, Central GST & Central Excise, Kochi Commissionerate & Others High Court of Kerala
28-01-2020 Vijay Dan & Another Versus State of Rajasthan, Through Its Principal Finance Secretary, Rajasthan, Jaipur & Others High Court of Rajasthan Jodhpur Bench
24-01-2020 Vijay B. Brahmbhatt Versus State of Gujarat & Others High Court of Gujarat At Ahmedabad
24-01-2020 M/s. C.C.L. Products (India) Ltd., Rep., by its Executive Chairman, Challarajendra Prasad & Others Versus The State of Andhra Pradesh, Rep., by its Public Prosecutor & Another High Court of Andhra Pradesh
23-01-2020 Arunabh Sinha Versus Panuganti Vijay Chandra Telangana State Consumer Disputes Redressal Commission Hyderabad
22-01-2020 V.B. Muraleedharan, Proprietor, Amrutha Oil Products, Shoranur V/S The Assistant Commissioner of Food Safety, Office of the Food Safety Commissioner, Kasaragod & Others High Court of Kerala
22-01-2020 V.B. Muraleedharan, Proprietor, Amrutha Oil Products, Shoranur V/S The Assistant Commissioner of Food Safety, Office of the Food Safety Commissioner, Kasaragod & Others High Court of Kerala
21-01-2020 Municipal Corporation of Greater Bombay Versus Pre-Stress Products (India) High Court of Judicature at Bombay
21-01-2020 M/s. Samrajyaa and Company, Represented by its Partner N. Ranganayaki Versus Deputy Commissioner of GST & Central Excise, Office of the Principal Commissioner of GST & Central Excise, Coimbatore High Court of Judicature at Madras
17-01-2020 Morzaria Products LLP Versus Marvel Omega Builders Pvt. Ltd. National Consumer Disputes Redressal Commission NCDRC
16-01-2020 M. Vijay V/S V.S. Surender & Others High Court of Karnataka
15-01-2020 New Delhi Municipal Council Versus Vijay Kumar Sharma High Court of Delhi
14-01-2020 The State of Maharashtra Versus Vijay Dnyandeo Chaugule & Another High Court of Judicature at Bombay
10-01-2020 Vijay @ Vijaykumar Versus State of Karnataka & Others High Court of Karnataka Circuit Bench At Dharwad
10-01-2020 Actis Consumer Grooming Products Ltd. Versus Tigaksha Metallics Private Limited & Others High Court of Himachal Pradesh
09-01-2020 ASL Builders Private Limited V/S Commissioner of Central GST & CX, Jamshedpur Customs Excise Service Tax Appellate Tribunal East Zonal Bench Bench, Kolkata
06-01-2020 Asutosh & Another Versus Commercial Taxes Department (GST) & Others High Court of Madhya Pradesh Bench at Indore
19-12-2019 The Management of Roca Bathroom Products Private Limited Ranipet Versus Ranipet Labour Union Rep. by its Secretary, S. Nagarajan Ranipet Vellore District & Another High Court of Judicature at Madras
19-12-2019 J. Vijay Anthony Versus The Director, Directorate of Medical Education, Poonamallee High Road, Chennai & Another High Court of Judicature at Madras
19-12-2019 The State of Maharashtra Versus Vijay Maruti Bombale & Others High Court of Judicature at Bombay
19-12-2019 The State of Maharashtra Versus Vijay Mohan @ Shivaji Kadam (Patil) & Another High Court of Judicature at Bombay
18-12-2019 Shamrao Moreshwar Kulkarni & Others Versus Vijay Jasraj Rahatekar & Others High Court of Judicature at Bombay
12-12-2019 Deepa Jayakumar Versus A.L. Vijay & Others High Court of Judicature at Madras
03-12-2019 Hariom Vijay Pande Versus State of Maharashtra, Through Divisional Commissioner & Another In the High Court of Bombay at Nagpur
02-12-2019 Karnataka State Agro Corn Products Ltd., by its Managing Director Versus M/s. Kerala Agro Seeds, Represented by its Proprietor, Martin Paul High Court of Karnataka
29-11-2019 Vijay Kumar Gupta Versus Kiran Bala High Court of Chhattisgarh
22-11-2019 BGR Energy Systems Limited, Represented by its Assistant Vice President Accounts, Chennai Versus The Additional Commissioner of GST & Central Excise, Office of the Principal Commissioner of CGST & Central Excise, Nungambakkam, Chennai & Another High Court of Judicature at Madras
21-11-2019 S. Kannan Versus The Management, Hatson Agro Products Limited, Chennai & Another High Court of Judicature at Madras
21-11-2019 Punjab & Sind Bank Versus M/s. Indo Foreign Commercial Agency Products Private Limited & Others High Court of Delhi
20-11-2019 Rajni Versus Vijay High Court of Delhi
19-11-2019 The State of Maharashtra Versus Vijay Babruhan Dhankude & Others High Court of Judicature at Bombay
18-11-2019 M/s. Renowned Auto Products Manufacturers Limited., now known as M/s. Tenneco Automotive India Pvt., Ltd., Rep. by its Director, J. Ambrose, Hosur & Another Versus The Presiding Officer, Labour Court, Salem & Others High Court of Judicature at Madras
13-11-2019 Shaji B. John, Kings International Ltd., Quilon & Others Versus The Marine Products Exports Development Authority, Cochin, Represented by Its Secretary, Dr. G. Santhanakrishnan High Court of Kerala
13-11-2019 M/s. Renowned Auto Products Manufacturers Ltd., Now known as M/s.Tenneco Automotive India Pvt. Ltd., Rep., by its Director, Ambrose, Tamil Nadu Versus The Presiding Officer, Labour Court, Salem & Another High Court of Judicature at Madras
07-11-2019 M/s. Vijay Trading & Transport Company Versus Central Warehousing Corporation Supreme Court of India
07-11-2019 Vijay Kisan Kumbhare Versus State of Maharashtra In the High Court of Bombay at Nagpur
04-11-2019 Vijay Kurle & Others Supreme Court of India
04-11-2019 V. Vijay Babu Versus The Regional Director Reserve Bank of India, Chennai & Others High Court of Judicature at Madras
01-11-2019 Premier Marine Products, Represented by its Authoritsed Signatory, Abdul Razzak Ganj Versus The Assistant Commissioner (CT) (Additional), Thiruvanmiyur Assessment Circle, Chennai High Court of Judicature at Madras