2018 (5) TMI 203 - AT - Central Excise

Refund of excess duty paid on the component of Sales Tax - deduction of amount of sales tax from the assessable value - 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. Whether the Member (Technical) is correct holding that any increase in duties, tax levy after expiry of delivery date has no bearing on the price of the past clearances, therefore, any increase in duty tax is to be borne by the appellant from their account, particularly when no documentary evidence to prove that the contract price actually included Sales Tax has been produced? - difference of opinion - majority order. Held that - the assessable value in terms of the clearance documents and assessment made during the relevant time show that neither sales tax was paid or payable and as such no deduction was permissible. The claim of the appellant that the sales tax dispute was settled against them later will not have any bearing as the invoice and the assessments were on the claim of the appellant that no sales tax was paid or payable. The assessment being final and excise duty has been discharged correctly with no indication of sales tax payable or paid , no variation in assessable value later is permissible. Appeal dismissed - decided against appellant.

Issues Involved:
1. Entitlement to refund claim for excess duty paid due to Sales Tax component.
2. Applicability of the bar of unjust enrichment.
3. Impact of contract terms on tax and duty liabilities.
4. Finality of assessment and subsequent changes in tax liability.

Detailed Analysis:

1. Entitlement to Refund Claim for Excess Duty Paid Due to Sales Tax Component:
The appellant entered into a contract for supplying telephonic instruments to a buyer, with prices inclusive of all taxes. Initially, the appellant believed they were exempt from Sales Tax and did not include it in their invoices. However, the Sales Tax Department later denied the exemption, leading the appellant to pay Sales Tax retrospectively. The appellant claimed a refund for the excess duty paid, arguing that the contract price was inclusive of all taxes, and thus, the Sales Tax should have been deducted from the composite price for duty calculation.

The lower authority rejected the refund claim, stating that since Sales Tax was paid after the contract completion, it was not included in the contract price, and hence, the duty paid at the time of clearance was correct.

2. Applicability of the Bar of Unjust Enrichment:
The appellant argued that the bar of unjust enrichment does not apply when prices are inclusive of all taxes. They cited several precedents, including cases like Cimmco Ltd. Vs. Collector of Central Excise and Panibati Rubber Limited Vs. CCE, where it was held that when prices are inclusive of all taxes, the bar of unjust enrichment is not applicable.

The tribunal agreed with the appellant, stating that since the price was inclusive of all taxes, the transaction value should be adjusted accordingly, and the appellant was entitled to a refund of the excess duty paid.

3. Impact of Contract Terms on Tax and Duty Liabilities:
The contract specified that prices were firm and inclusive of all taxes, and any increase in taxes after the delivery date would be borne by the contractor. The Member (Technical) emphasized that any increase in taxes after the delivery date should not affect the price of past clearances, and the appellant failed to provide concrete evidence that the contract price included Sales Tax.

4. Finality of Assessment and Subsequent Changes in Tax Liability:
The third Member (Technical) highlighted that the assessable value was determined based on the contract price at the time of clearance, which did not include Sales Tax as it was neither paid nor payable then. The subsequent denial of Sales Tax exemption and payment of Sales Tax did not alter the finality of the initial assessment. The Member (Technical) concluded that no variation in assessable value was permissible after final assessment.

Majority Decision:
The majority decision, led by the third Member (Technical), held that the final assessment was correct, with no indication of Sales Tax payable or paid at the time of clearance. Therefore, no subsequent variation in assessable value was permissible. The appeal for a refund was dismissed, upholding the finality of the initial assessment and the correctness of the duty paid.

Conclusion:
The appellant's claim for a refund of excess duty paid due to the retrospective payment of Sales Tax was dismissed. The tribunal held that the initial assessment was final and correct, with no provision for adjusting the assessable value based on subsequent tax liabilities. The bar of unjust enrichment was deemed inapplicable, but the lack of concrete evidence and the finality of the initial assessment led to the dismissal of the appeal.

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