9911796707
TMI Blog2010 (1) TMI 1023X X X X Extracts X X X X X X X X Extracts X X X X ..... delivery in different states all over India. Since the respondent claimed that the price included 18% Central Excise duty, after abating the central excise duty from the price of Rs. 425/- per instrument, the duty was paid by them on the assessable value of Rs. 360.17 per instrument, which came to Rs. 64.83 per instrument. Subsequently, they filed a refund claim, claiming that the assessable value also included the element of transportation cost and insurance, which are also to be excluded as per the provisions of Section 4(2) of Central Excise Act and on this basis they preferred refund claim of Rs. 99,545/- for the period from 1-4-97 to 12-9-97. A show cause notice dated 6-8-99 was issued to them asking them, show cause as to why the cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Mcnally Bharat Engineering Co. Ltd. reported in 2000 (168) E.L.T. 249 wherein it was held that doctrine of unjust enrichment is not applicable, when the buyer pays a contract price only. It is against this order of the Commissioner (Appeals), that the present appeal has been filed by the Revenue. 2. Heard both the sides. 2.1 Shri S.N. Srivastava, ld. Departmental Representative, reiterated the ground of appeal in the Revenue s appeal and pleaded that in this case it is very clear that the respondent had paid duty on the higher value including freight and insurance and therefore, the burden of proving that its incidence was not passed to customer, is on them, which has not been discharged by them and that the judgment of the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they subsequently filed a refund claim of Rs. 99,545/-. Since it is clear that the respondent have paid duty on the higher value which includes the element of freight and it is not under dispute that the element of duty has been separately shown in the invoices, in accordance with the provisions of Section 12B of the Central Excise Act, for the purpose of claiming refund, the burden of proving that the incidence had not been passed on to the buyers would be on the respondent. Just because the respondents were supplying the instruments to Department of telecom at fixed contract price, it cannot be concluded that the element of duty, whose refund is being claimed by them, has not been passed on. I also take note of the ld. DR s plea that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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