Judgment:
1. The issue in the appeal relates to acceptance of Part II price based on the price lists filed after the clearance of goods. The appellants had cleared the goods based on the price list filed under Part-I to industrial consumers. As a result of negotiations between the customer and the appellants, the sale price agreed to was Rs. 19.20 per litre as against Rs. 20.40 per litre reflected in the part-I price lists. The appellants supplied the goods to the customer and paid duty based on the earlier approval granted at the rate of Rs. 20.40 per litre and thereafter they claimed refund after filing of Part II price lists.
2. The appellants are absent and there is also no request for adjournment. Taking into consideration that the short compass in which the issue falls, the appeals are taken up for disposal on merits.
3. The learned DR pleaded that the appellants would be entitled to the charge of duty at the lower price only in the event of their making the clearances based on a price list in Part-II filed before the clearance of the goods in question. In the present case since the price list was filed after the clearance of goods, the benefit of lower price cannot be allowed.
4. We have considered the pleas made by the learned DR. We observe that the supply of the goods has been made to an industrial consumer and the industrial consumers are covered in terms of Section 4 within the ambit of Section 4(1)(b) as a category of customers to whom the goods could be sold at a price different from the goods sold in terms of Section 4(1)(a). There would have been no difficulty in case the appellants had filed the Part-II price lists prior to the clearance and subject to the satisfaction that this price was in the course of the normal trade and the appellants would have become entitled to the assessment at the lower price. The question therefore that arises is where by reason of their having claimed the lower assessment after clearance of the goods the appellants could be barred by the benefit of assessment under Section 4(1)(b).
5. We observe that the law provides for a contingency of a price lower than the one under Section 4(1)(a) of the CEA, in case the sales are made to classes of buyers, namely among others industrial consumers. In the present case, the sale has been made to the industrial consumer and is claimed that this price has been arrived at after negotiations with the customer and after the finalisation of the price, the appellants came up with a Part-II price lists and claimed for assessment at the lower price. A substantive benefit provided under the law cannot be denied so long as it could be established that the parameters which entitle the assessment under Section 4(1)(b) are satisfied. In the present case, the sale being to an industrial consumer and so long as this can be shown by the appellants that the sales was in the normal course of business, the lower price agreed to for sale between the appellants and the customers would be acceptable. We are of the view that the appellants will be entitled to the benefit if they are able to satisfy the authorities that they satisfied the criterion for assessment under Section 4(1)(b) notwithstanding the fact that the price in Part-II was filed subsequent to the clearance of the goods.
The appeals are allowed in the above terms. We make it clear that the grant of refund will be subject to provisions of the amended Section 11B in regard to unjust enrichment.