2010 (7) TMI 544 - AT - Central Excise

Refund - the duty was paid on the basis of the price agreed upon in relation to the goods which were supplied by the respondents to the said corporation whereas the refund claim was based on alleged reduction in the price on account of penalty imposed by the corporation against the respondents for late delivery of the goods in breach of the agreement between the parties - Certain amount out of the amount payable equivalent to the agreed price was deducted by the consignee on account of delay in delivery which related to the breach of the contract and not to price variation - Appeal is allowed

Summary

Issues Involved:
1. Justification of refund of duty paid based on price agreed upon.
2. Interpretation of "price variation" and "price reduction" clauses in the contract.
3. Applicability of transaction value under Section 4(3)(d) of the Central Excise Act, 1944.
4. Relevance of previous tribunal and Supreme Court decisions.

Issue-wise Detailed Analysis:

1. Justification of Refund of Duty Paid Based on Price Agreed Upon:
The respondents supplied electricity meters to a corporation and faced deductions from the agreed price due to late delivery. They filed for a refund of Rs. 22,95,510/-, which was initially rejected by the Deputy Commissioner but later allowed by the Commissioner (Appeals). The appellants argued that mere deductions from the price due to breach of contract terms do not justify a refund of the duty paid on the agreed price. The Tribunal agreed with this argument, referencing previous cases like Bhartia Cutler Hammer Ltd. and BPL Telecom Ltd., which established that deductions due to breaches do not alter the assessable value for duty purposes.

2. Interpretation of "Price Variation" and "Price Reduction" Clauses in the Contract:
The contract contained Clause 27 (price reduction for late delivery) and Clause 2.18 (price variation based on market indices). The Tribunal clarified that Clause 27 specifically dealt with reductions due to late delivery, while Clause 2.18 related to general market-based price variations. The Tribunal concluded that deductions under Clause 27 are not price variations but compensations for breach of contract, thus not affecting the agreed price for duty calculations.

3. Applicability of Transaction Value Under Section 4(3)(d) of the Central Excise Act, 1944:
The respondents argued that the transaction value should consider the actual price paid, including deductions for late delivery. The Tribunal, however, noted that transaction value under Section 4(3)(d) includes the price agreed upon and not compensations or penalties for breaches. Therefore, deductions due to late delivery do not alter the transaction value for duty purposes.

4. Relevance of Previous Tribunal and Supreme Court Decisions:
The Tribunal referenced several previous decisions, including Bhartia Cutler Hammer Ltd., BPL Telecom Ltd., and HPL Socomac Pvt. Ltd., which supported the view that deductions for breaches do not affect the assessable value. The Tribunal also distinguished the present case from Telk Ltd., where price variation was undisputed. In the present case, the price remained static, and deductions were due to contractual breaches, not price variations.

Conclusion:
The Tribunal concluded that the Commissioner (Appeals) erred in allowing the refund based on deductions for late delivery. The appeal succeeded, and the order of the Adjudicating Authority rejecting the refund claim was restored. The Tribunal emphasized that deductions due to breaches do not constitute price variations and do not affect the assessable value for duty purposes.