2010 (1) TMI 1023 - AT - Central Excise

Summary

Issues:
Refund claim based on exclusion of transportation cost and insurance from assessable value under Central Excise Act.

Analysis:
The case involved a dispute over a refund claim by the appellant, a manufacturer of telephone instruments, regarding the exclusion of transportation cost and insurance from the assessable value for Central Excise duty calculation. The appellant supplied push-button telephone instruments to the Department of Telecom at a uniform price, which included taxes. Initially, the appellant paid duty after abating the excise duty from the price per instrument. Subsequently, they claimed that the assessable value also included transportation and insurance costs, leading to a refund claim of Rs. 99,545. The Asst. Commissioner rejected the claim, but the Commissioner (Appeals) allowed it based on a Supreme Court judgment and the doctrine of unjust enrichment.

The main contention raised by the Revenue was that the appellant had paid duty on a higher value, including freight and insurance, and had not proven that this incidence was not passed on to the customer. The Revenue argued that the Tribunal's judgment in a similar case was not applicable. On the other hand, the appellant's counsel defended the order, stating that since the Department of Telecom had not paid any amount over the contract price, the duty incidence had not been passed on.

The Tribunal carefully considered the submissions and records, noting that the appellant had paid duty on a higher value that included freight. The burden of proof, as per Section 12B of the Central Excise Act, was on the appellant to show that the duty incidence had not been passed on. Despite supplying instruments at a fixed contract price, the Tribunal held that this did not absolve the appellant from proving that the duty incidence had not been passed on. As the appellant failed to provide a breakup of the contract price and discharge the burden of proof, the Tribunal concluded that they were not eligible for the refund. Consequently, the Commissioner (Appeals) order permitting the refund was set aside, and the Revenue's appeal was allowed.

In conclusion, the Tribunal's decision centered on the burden of proof regarding passing on duty incidence, emphasizing the need for clear evidence and compliance with statutory provisions for refund claims under the Central Excise Act.