2017 (11) TMI 1173 - AT - Central Excise

Refund of excess duty paid on the component of Sales Tax paid - rejection on the ground that as the Sales Tax has been paid after completion of the contract and the same is not inclusive in the contract, therefore, they have to bear the amount of Sales Tax and whatever duly have been paid by them at the time of clearance of goods is correctly paid - unjust enrichment - Held that - As there is difference of opinion between both the Members, therefore, matter is place before the Hon ble President to appoint third Member to decide the issues - matter referred to third member.

Summary

Issues:
1. Refund claim rejection by the authority below.
2. Applicability of unjust enrichment in the case.

Analysis:
1. The appellant appealed against the rejection of their refund claim by the authority below. The appellant entered into a contract for the supply of telephonic instruments to a company in Bihar. The contract prices were inclusive of all taxes, freight, etc. The appellant believed they were exempt from paying Sales Tax and applied for exemption. However, the Sales Tax Department denied the exemption, leading the appellant to pay Sales Tax after the completion of the contract. The appellant sought a refund of the excess duty paid on the Sales Tax component. The authority rejected the refund claim, stating that since Sales Tax was paid after the contract completion and not included in the contract price, the appellant had to bear the amount. The appellant contended that as the contract was composite and inclusive of all taxes, they were entitled to the refund. The tribunal found in favor of the appellant, holding that they were entitled to the refund of the excess duty paid on account of Sales Tax.

2. The tribunal also examined the application of the bar of unjust enrichment in the case. Referring to previous decisions, the tribunal concluded that when the price is inclusive of all taxes, the bar of unjust enrichment does not apply. Citing specific cases, the tribunal determined that in circumstances where the price includes all taxes, the appellant should be entitled to the refund claim. Therefore, the tribunal held that the bar of unjust enrichment was not applicable to the facts of this case.

Difference of Opinion:
There was a difference of opinion between the Members regarding the deduction of Service Tax from the composite price of goods and the bearing of any increase in duty tax after the delivery date. The matter was referred to the Honorable President to appoint a third Member to decide on these issues. One Member held that the appellant was entitled to the refund due to the excess duty paid, while the other Member stated that any increase in duty tax after the delivery date should be borne by the appellant, especially in the absence of concrete evidence proving that the contract price included Sales Tax.

This detailed analysis covers the issues of the refund claim rejection, the application of unjust enrichment, and the difference of opinion between the Members regarding the deduction of Service Tax and the bearing of duty tax increase post-delivery date.