Deepak Gupta JUDGMENT
Deepak Gupta, J.
1. Leave granted.
2. Since a common question of law arises in these appeals, they are being disposed of by this common judgment. Briefly stated the facts are that the Appellant-Assessee manufactures cylinders for storage of Liquefied Petroleum Gas (LPG). At the relevant time, the entire production was for supply to Government owned companies viz. M/s. Indian Oil Corporation Ltd. (for short 'the IOC'), M/s. Bharat Petroleum Corporation Ltd., and M/s. Hindustan Petroleum Corporation Ltd. It is not disputed that the cost of the cylinders was determined by the Ministry of Petroleum and Natural Gas (for short 'the MoP & NG') under the pricing policy.
3. On 04.05.2000, the IOC placed an order for supply of 73380 numbers of 14.2 Kg. LPG cylinders which was to be made by 31.08.2000. Clause 3 of the supply order reads as follows:
You can charge a provisional price of Rs. 682.00 for 14.2 Kg cylinders. Pricing formula is under review by the Government and the final prices applicable after 01.07.99 will be only as per approval of MOP & NG.
4. The Appellant-Assessee supplied the cylinders and charged the amount of Rs. 682/- per cylinder and also charged sales tax on the same in accordance with law. Similar supply orders were placed by the other companies also.
5. On 31.10.2000, the IOC sent a letter to the Appellant that after review of the prices, the price of 14.2 Kg. cylinders has been again provisionally revised to Rs. 645/- with effect from 01.07.1999. Relevant portion of the letter reads thus:
Pending finalization of the report and the short time available to recover the cost due to the proposed cylinder tender, Industry has decided to revise the provisional basic price of 14.2 Kg cylinder to Rs. 645/- with effect from 01.07.1999. Accordingly we will be recovering the differential amounts from your bills. Final adjustments would be made later on after finalization of the cylinder price.
6. Thereafter, the oil companies deducted/adjusted the excess payment of Rs. 37/- and proportionate sales tax thereon from the payments due to the Assessee. Thereafter the Assessee approached the Assessing Authority for refund of the sales tax paid on the excess sale amount i.e. Rs. 37/-. The case of the Assessee was that he had paid tax on the provisional price of Rs. 682/- per cylinder. After the price had been reduced to Rs. 645/-, he was only entitled to Rs. 645/-. The oil companies had taken refund of the amount of Rs. 37/- and, therefore the tax paid on the excess amount be refunded to him. The Assessee also urged that this amount of Rs. 37 should not be counted in its total turnover.
7. The Assessing Officer rejected the claim of the Assessee on the ground that there is no provision under the Act for reducing or refunding the amount........