IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. : 1082/2004 and Central Excise Appeal No.3/2004 Reserved on: 9.12.2009 Decided on:8.1.2010. 1. CWP No. 1082/2004 M/s Himachal Futuristic Communication Limited ...Petitioner. Versus Union of India and others. ... Respondent. 2. Central Excise Appeal No. 3/2004 Commissioner Central Excise. …Appellant. Versus M/s Himachal Futuristic Communication Limited ...Respondent. Coram The Hon’ble Mr. Justice R.B. Misra, ACJ. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. 1. CWP No.1082/2004 For the petitioner : Mr. Avinash Chander, Advocate. For the Respondent : Mr. Sandeep Sharma, Assistant Solicitor General of India. 2.Central Excise Appeal No.3/2004: For the appellant : Mr. Sandeep Sharma, Assistant Solicitor General of India. For the respondent : Ms. Aruna Chauhan, Advocate. Whether the reporters of the local papers may be allowed to see the Judgment? 2 Rajiv Sharma, J. Since common questions of law and facts are involved in these two cases, the same were taken up together for hearing and are being disposed of by a common judgment. However, the facts of CWP No. 1082/2004 are being discussed herein-below. Petitioner commenced manufacturing activity on 13.7.1987. The refund claim of the petitioner was rejected by the Adjudicating Authority i.e. Assistant Commissioner on 19.2.2002. Petitioner preferred an appeal before the Commissioner of Central Excise (Appeal) against the order dated 19.2.2002. He vide order in appeal No. 216/CA/CHD/203 dated 20.3.2003 set aside the order in original and ordered the refund to the petitioner. The Revenue preferred an appeal with the CESTAT. The same was rejected on 18.3.2003. Petitioner approached this Court for implementation of order dated 18.3.2004. The Revenue has filed Central Excise Appeal No. 3/2004. The same was admitted on the following question of law on 9.12.2004: “Whether the provisions of “Time Bar” under section 11B of the Central Excise Act, 1944 would be applicable or not in such cases, where prices were finalized after 5 years and provisional assessment was not resorted to by the party.” The question of law framed in Central Excise Appeal No. 3/2004 is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in MRF Limited versus Collector of Central Excise, Madrass, (1997) 5 SCC 104. Their Lordships have held as under: “2. We have heard the learned counsel for the assessee. 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 3 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. This is the view which was taken by the tribunal in the case of lndo Hacks Ltd. v. CCE and it seems to us that the tribunal's view that the duty is chargeable at the rate and price when the commodity is cleared at the factory gate and not on the price reduced at a subsequent date is unexceptionable. Besides as rightly observed by the tribunal the subsequent fluctuation in the prices of the commodity can have no relevance whatsoever so far as the liability to pay excise duty is concerned. That being so, even if we assume that the roll back in the price of tyres manufactured by the appellant Company was occasioned on account of the directive issued by the central government, that by itself, without anything more, would not entitle the appellant to claim a refund on the price differential 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. That being so, we see no merit in this appeal brought by the assessee and dismiss the same with no order as to costs.” Accordingly in view of the authoritative pronouncement by their Lordships of the Hon’ble Supreme Court, as noticed above, Central Excise Appeal No. 3/2004 is allowed. The question of law is answered in favour of the Revenue and against the respondent. In view of this, writ petition is liable to be dismissed and the same is dismissed. There shall, however, be no order as to costs. (R.B. Misra), ACJ. (Rajiv Sharma), J. 8.1.2010 *awasthi*