9911796707
TMI Blog2007 (11) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment of India for supply of the finished goods, which specifically indicated the price at which the appellant is required to supply the goods and it was inclusive of the excise duty. While arriving at the assessable value, the appellant, erroneously deducted the excise duty payable @ 24% adval., due to which they paid excess duty. Realizing their error and on being denied amount by the MOD, GOI, the appellant filed refund claim with the authorities giving all the required evidence. The said refund claim was scrutinized by the lower authorities, show cause notice was issued to the appellant for rejection of such refund claim. The show cause notice was adjudicated by the adjudicating authority who allowed the refund claim. Against the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the ld. Commissioner (Appeals). It is his submission that the ld. Commissioner (Appeals) has admitted the fact that the goods were cleared under a contract price and that also to the ordnance factory. It is his submission that despite this being the fact, the ld. Commissioner (Appeals) has relied upon incorrectly, on the decision in the case of Priya Blue Industries Ltd. v. Commissioner of Customs (Preventive) as reported at 2004 (172) E.L.T. 145 (S.C.)] and rejected the appeal. He relies upon the following judgments, to submit that once there is a rate contract question of unjust enrichment does not arise : (1) Industrial Cables Ltd. v. CCE [2005 (185) E.L.T. 70 (Tri. - Del.)] (2) &n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r directly or indirectly passed on to the buyers. 8. Considered the submissions made by both sides and perused the records. It is undisputed that the appellant had cleared the goods under the contract price of the Ordnance factory. This fact is undisputed from the impugned order from paragraph 6.4 which reads as under :- "In the present case it is undisputed fact on record that the goods were cleared under a contract price and their buyer namely Ordnance Factories which are Government organization, paid them the contracted price only as per the certificates placed on records." This undisputed fact clearly establishes that the certificate issued by the Indian Ordnance Factories, Deputy General Manager, that the appellants were paid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund claim be sanctioned and paid within a period of six weeks from the date of receipt of a copy of this order." It can be seen from the above reproduced ratio that question of unjust enrichment in respect of the rate contracts supplies stands squarely settled in favour of appellant. It is also evident from the decision of the Tribunal in the case of Mc Nally Bharat Engg. Co. Ltd. (supra), Alstom Ltd [2004 (168) E.L.T. 511 (Tri. - Del.)] (Supra). 9. As such, I find that the appellant have made out a strong case in their favour, as they have been able to bring on record and that they have not passed on incidence of duty for which they have claimed refund. The contrary findings of the ld. Commissioner (Appeals) in this respect are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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