2007 (10) TMI 115 - AT - Central Excise

According to contract of assessee and buyer, price of goods supplied will be inclusive of duty In such cases, if it is held that duty is not payable we cannot say that price includes duty it means, assessee only has borne the incidence of duty Refund admissible.

Summary

Issues:
1. Appeal against the Order-in-Appeal rejecting refund claim for excisable materials.
2. Determination of unjust enrichment in excise duty refund claim.
3. Interpretation of contract terms regarding inclusion of excise duty in price.

Analysis:
Issue 1: The appeal was filed against the Order-in-Appeal rejecting the refund claim for excisable materials by the manufacturers. The Commissioner (A) examined the issue and allowed the refund claim, leading to the Revenue filing an appeal against this decision.

Issue 2: The key point of contention was the determination of unjust enrichment in the excise duty refund claim. The Commissioner (A) relied on case-laws to establish that there was no unjust enrichment in this case, as the duty had not been passed on to the buyer due to specific contractual terms and the buyer's refusal to pay the duty on the waste materials.

Issue 3: The interpretation of contract terms regarding the inclusion of excise duty in the price was crucial in this case. The Tribunal observed that when the duty is not payable and has not been passed on to the buyer, the manufacturer is entitled to a refund without unjust enrichment. The Tribunal referred to previous decisions where it was held that the burden of duty cannot be considered as passed on to customers when the contract price is inclusive of duty.

In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the Commissioner (A)'s decision to allow the refund claim. The Tribunal emphasized that in cases where the duty is not payable and has not been passed on to the buyer, the manufacturer is entitled to a refund without unjust enrichment, as evidenced by the specific contractual terms and previous legal precedents.