9911796707
TMI Blog2005 (3) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared on behalf of the appellants and Shri A. Jayachandran, DR for the revenue. 3. The brief facts of the case are as follows: The appellants manufacture Carrier Breach Block assembly , a commodity which is excisable. They participated in an open tender floated by the Ordnance Factory, Trichy, a defence establishment of the Govt. of India. Since the appellants fall under the SSI exemption and never exceeded Rs. 30.00 lacs clearance they quoted Rs. 621/- per unit as cum-duty price. In fact the duty is actually NIL in view of the SSI status of the appellants and very low clearance. They secured the order for supply of 1250 pieces on 13-10-2000. As per the order the price is inclusive of excise duty meaning that the cum-duty price is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 9-8-2001. The appellants were hopeful of positive response from Ministry of Finance, Govt. of India who were actively considering the representation of the appellants. Hence the appellants sought further extension of time till 30-9-2001 by their letters dated 25-8-2001 and 27-8-2001 reiterating that the payment of 32% duty would put them to heavy loss. Since the appellants could no longer get further extension they dispatched the goods in their invoice dated 3-10-2001 without actually knowing that the levy had been withdrawn with effect from 1-10-2001 by extending the benefit of the SSI exemption to them as before. While dispatching the goods they paid full duty amount of Rs. 1.88 lacs taking Rs. 621/- per piece as the cum-duty price. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants represented to the Govt. of India for reintroduction of exemption and also to the buyer for enhancement of the contract to include the duty element. There is clear evidence to show that the buyer, (Ordnance Factory) rejected the request of the appellants. In any case, the representation of the appellants was under active consideration of the Ministry of Finance, Govt. of India and on 1-10-2001 the exemption was reintroduced. When they cleared the goods they were not leviable to duty. However, on the date of clearance they were not aware of the exemption that is why they considered Rs. 621/- as cum-duty price and paid the duty thereon. Only for the sake of transporter they issued the excise invoice. Since the amount of Rs. 621/- do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom customers. He said the present case is even much stronger than the above-mentioned case. In this case it is very clear that what is collected from the buyer is only the basic price. Even though excise duty was paid the same was not payable in view of the exemption. Hence there is no question of passing on the burden to the buyer. Moreover excise duty was issued only for the purpose of transporter. In the commercial invoice issued no amount is shown as representing excise duty. In these circumstances he submitted that the refund should be given to the appellants. 5. Ld. DR contended that it is very clear that the price is inclusive of duty. It is also seen that they have issued the excise invoice. The excise duty is included in Rs. 621 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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