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TMI Blog2013 (7) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... incorporating the said chapter under the SSI Exemption. Held that:- The price Rs.621/- per piece is inclusive of excise duty, thus, there being no liability, there could be no passing of a liability to the customer - If the assessee had charged Rs.470.46 apart from what has been charged as duty and paid it, the question of refund has to be considered based on the facts as to whether the assessee had passed on the liability to the purchaser. If the amount had been paid by the assessee and not been passed on to the purchaser, then the question of rejection of refund does not arise. - The matter remanded back to the Assessing Officer for working out as to whether the claim can be considered for the period after 01.10.2001. Decided in favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- per piece inclusive of Excise Duty. It is seen from the facts that during Budget 2001, as the chapter 93.05 was taken out of SSI exemption purview, vide Notification No.8/2001 dated 01.03.2001, Carrier and Breech Block Assembly falling under Chapter 93.05 was brought into Excise Net. It is not disputed by the Revenue that the exemption withdrawn was restored vide Notification No.47/01 dated 01.10.2001 by incorporating the said chapter under the SSI Exemption. Considering the withdrawal of the exemption and the restoration, the Government held that clearance of goods falling under Chapter 93.05 of Act, 1985 and parts falling under heading No.93.06 or 93.07 before the 1st day of October 2001, would not come for refund of duty if the duty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er piece was inclusive of excise duty. The assessee had raised three invoices dated 03.10.2001, wherein, the basic duty was declared as Rs.470.46. Thus, the excise duty had been charged separately; in the circumstances, he rejected the refund claim. 6. Aggrieved by the same, the assessee went on appeal before the Commissioner of Central Excise (Appeals), who, confirmed the rejection order. Aggrieved by this, the assessee went on further appeal before the CESTAT. 7. On a perusal of the documents, the CESTAT held that even though the price charged stated that it was stated to be inclusive of excise duty, yet, there was no liability to pay excise duty when the exemption was there in force. The request of the assessee was that the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . We may point out herein that neither the assessee nor the Revenue had placed full facts even to appreciate the arguments of the Revenue herein. 11. The assessee is a SSI unit. It obtained a supply order from Ordnance Factory, Trichy for the supply of Carrier Breech Block Assembly, falling under Chapter 93.05. The assessee, an SSI Unit enjoyed the SSI exemption. This exemption was available atleast till the Budget 2001. When Budget 2001 took this entry out of Heading 93.05, vide Notification No.8/2001 dated 01.03.2001. It means that on and from 01.03.2001, there was no exemption. As the price charged by the assessee was inclusive of duty, it stands to reason that that the assessee had passed on the duty element to the purchaser and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce. If the assessee had charged Rs.470.46 apart from what has been charged as duty and paid it, the question of refund has to be considered based on the facts as to whether the assessee had passed on the liability to the purchaser. If the amount had been paid by the assessee and not been passed on to the purchaser, then the question of rejection of refund does not arise. 14. In the circumstances, we hold that the facts being not clear in this case, the matter has to remanded back to the Assessing Officer for working out as to Whether the claim can be considered for the period after 01.10.2001. 15. In the circumstances, we direct the Assessing Authority concerned to look into this and pass orders in accordance with law on the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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