ORDER
C.N.B. Nair, Member (T)
1. These two appeals relate to the same dispute. Accordingly, they were taken up for consideration together and are disposed of under this common order.
2. The appellant is a Public Sector Undertaking, manufacturing petroleum products, inter alia, Benzene and Toluene. Since their goods were liable to duty on ad valorem basis during the relevant period, they were required to file price list for approval before Central Excise Authorities. And they were doing so. They filed price list dt. 16-9-1992 which was approved on 3-3-1993. The appellant declared, for Benzene, a price of Rs. 15,373.94 (MT) and Rs. 14,994.35 (MT) for Toluene as ‘value claimed for approval’. These values were approved also by Central Excise Officers. Under Self Removal Procedure (SRP) an assessee is required to determine duty and make payment at the time of removal of each consignment. Accordingly, the appellant assessed consignments at the appropriate rate taking the above amounts as assessable value and paid duty. This was a mistake, because these values were consolidated sale prices i.e. they took in taxes also and the assessee could not recover duty amounts over and above the sale prices. Since the duty amounts paid to the Excise were more than the duty collected from the buyers, the appellant filed a refund application dt. 7-5-1993. This claim was rejected by the Central Excise Authorities holding that the payment of duty was in terms of approved price list. Rejection of this refund claim is the subject matter of Appeal No. E/305/02. The appellant had also filed a revised price list for the period covered by the price list dt. 16-10-1992, so as to make it clear that the prices which had been approved were cum-duty prices. This price list was rejected on the ground that retrospective approval of price lists is not permissible. Appeal E/208/99-NB(A) is directed against that order.
3. The contention of the Revenue is that since original assessments had been made in terms of approved price lists and since price lists cannot be approved retrospectively, there was no error in the original payments made. It is also being submitted that since the appellant had not filed any appeal against the approved price lists, they could not have challenged assessments made in terms of refund provisions.
4. As against the above contentions of the Revenue, ld. Counsel has submitted that the assessee is not seeking any revision of approved prices. In fact, the sale of the goods was at the approved prices. According to the Counsel, the error is only in making assessments of consignments and amounts paid based on the approved price lists. It is being pointed out that since the declared prices, which were approved also, were consolidated cum-duty prices, all assessments were to be correctly made treating the prices as including duty. Instead, the appellants officers, even while selling the goods at cum-duty prices, assessed the goods for duty payment, treating the approved cum-duty prices as ex-duty prices. According to the Counsel, this is a clear case of error in assessments and no revision of approved price lists is involved. Ld. Counsel has also taken us through the documents relating to approval of price lists and assessments.
5. We have perused the records and considered the submissions made by both sides. It is evident from the documents that the prices declared by the appellant were consolidated cum-duty prices. They were approved also. In such a case, the assessee was required to make assessment of consignments treating the approved prices as cum-duty prices. This was the method adopted also while selling the goods to buyers. However, duty payments were made treating the approved prices as ex-duty. In the facts of the present case, we are in agreement with the appellant that this is more a case of error in making assessments and payment of duties than a case where refund is being claimed, based on a change of value. The appellant’s case, therefore, is not covered by the objection raised by ld. DR that approved price lists cannot be challenged through refund claims.
6. In view of the facts stated above, the appeal is allowed with the direction that Dy. Commissioner may check the appellants’ claims in respect of correctness of amounts and make payments of the refund after such verification. The question of unjust enrichment cannot arise in the present case since duty payments as evidenced from the PLA are higher than the duty realised from the buyer of the goods. Since we are allowing the refund applications, the issue of retrospective approval of price lists which is covered by appeal E/208/99-A does not survive. That appeal is, therefore, dismissed.
7. Since the refund claim relates to duty paid more than a decade age, it is further directed that final order of refund shall be passed by the Dy. Commissioner within a period of eight weeks from the date of receipt of a copy of this order.