1. This petition has been filed by the assessee under Section 35-H of the Central Excise Act, 1944 seeking a direction for reference of following questions of law (handed over in court at time of hearing), arising out of the order of the Tribunal dated 8.10.2002:—
“i) Whether in the facts and circumstances of the case the Delhi Bench of the Tribunal was bound to follow the Kolkata Bench judgment in Utkal Poyweave Indus, Pvt. Ltd. v. Commissioner of Central Excise, Bhubaneswar [2001 (136) ELT 818 (Tri. Kolkata)] and in the event of disagreement, the Tribunal was bound to refer the question to a Larger Bench as was prayed for by the petitioner?
ii) Whether the Tribunal misapplied the MRF judgment of the Supreme Court reported as 1997 (92) ILT 209 (SC) to the facts of the petitioners case when they were totally different from those in the MRF case?
iii) Whether the Tribunal could have followed the judgment of the larger Bench of the Tribunal in the case of Rajiv Mardia v. Commissioner of Central Excise [2000 (118) ELT 627 (Tri. LB)] which stood over-ruled by a still Larger Bench in the same case reported as 2001 (129) ELT 334 (Tri. LB)?
iv) Whether the Tribunal should have called for the records of the case from the Department when the petitioner had pleaded that the appeal of the Department was time barred?
2. The assessee is a manufacturer of LPG cylinders and has paid excise duty during the period 1.7.1999 to 24.11.1999 Subsequently, the application for refund was made on 24.11.2000 on the ground that price was reduced by the oil company to whom cylinders were supplied. The adjudicating authority rejected the claim for refund following the judgment of the Hon'ble Supreme Court in Mrf Ltd. v. Collector Of Central Excise, Madras, Madras, 1997 (92) E.L.T 309 (S.C), wherein it was held as under:—
“Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter Of concern to the Central Excise Department insofar as the liability to payment of excise duty was concerned. Therefore, subsequent fluctuation in the prices of the commodity can have no relevance whatsoever So far as the liability to pay excise duty is concerned, unless it is shown that there was some agreement in this behalf with the Government and the latter had agreed to refund the excise duty to the extent of the reduced price”.
3. The Commissioner (Appeals) allowed refund to the extent of Rs. 39,44,755/- and rejected the refund to the extent of Rs. 12,87,318/-. The reduction in refund was on the basis of claim for refund being time barred.
4. On appeal, the Tribunal dismissed the appeal of the assessee and allowed the appeal of the revenue. In para 4 of the order, concession of the assessee that claim was timebarred and was not pressed was also noticed. The argument of the assessee that. Kolkata Bench of the Tribunal had allowed refund was rejected on the ground that larger Bench of the Tribunal had taken a different view and the judgment of the Hon'ble Supreme Court was direct on the point.
5. Learned counsel for the assessee submits that the view taken by larger bench which has been followed by the Tribunal i.e Rajiv Mardia v. Commissioner of C. Ex. & Cus., Indore, 2000 (118) E.L.T 627 (Tri. L.B) has been overruled by a still larger Bench in the same case i.e Rajiv Mardia v. Commissioner of C. Ex. & Cus., Indore, 2001 (129) E.L.T 334 (Tri. L.B).
6. Learned counsel for the revenue on the other hand points out that apart from the fact that the matter was directly covered against the assessee by a judgment of Hon'ble Supreme Court in MRF's case (supra), there is a subsequent judgment of the Hon'ble Supreme Court in Metal Forgings v. Union of India, 2002 (146) E.L.T 241 in which it was held:—
“12. From the above, it is clear that to establish that the clearances were made on a provisional basis, there should be first of all an order under Rule 9B of the Rules, and then material to show that the goods were cleared on the basis of said provisional basis, and payment of duty was also made on the basis of said provisional classification. These facts in the instant case are missing, therefore, in our opinion there is no material in the instant case to establish the fact that either there was a provisional classification or there was an order made under Rule 9B empowering the clearance on the basis of such provisional classification. In the absence of the same, we cannot accept the argument of the Revenue that in fact the order of the Assistant Collector dated 21.1.1976 is a provisional order based on which clearance was made by the appellants or that they paid duty on that basis. On the contrary, as held by the Judicial Member, the said order of classification was a final order, therefore, the Revenue cannot contend the limitation prescribed under Section 11A does not apply”.
7. In the present case, it is not shown that clearance of the goods was made on provisional basis. Once this is so, reduction of price at a later date could not be made foundation for seeking refund.
8. Further we do not find any merit, whatsoever, in the contention raised by learned counsel for the assessee that the Tribunal should have constituted a larger Bench for consideration of this matter in case it was not agreeing with the view taken by a coordinate Bench of Kolkata, as the issue is squarely covered by the judgment of Hon'ble the Supreme Court.
9. We do not find any question of law which may be required to be referred for the opinion of this Court.
10. Accordingly, the petition is dismissed.
11. An oral prayer has been made by learned counsel for the assessee that in terms of Section 35 L(a) of the Central Excise Act, 1944, it may be certified that the case is fit one for appeal to the Hon'ble Supreme Court.
12. We are unable to accept this request as the matter is covered by the judgment of the Supreme Court dealing with the issue.
Petition dismissed.