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TMI Blog2016 (4) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... action price was agreed upon as compared to Partapur, duty was paid at higher value but duty at lower value was recovered from the dealers of Noida & Bulandsahar at the agreed upon price. The duty for such clearances was thus required to be paid at the agreed upon price (Transaction value) and not the value at which duty was paid. Transaction value under the existing Section 4 cannot be fixed based on the place of clearance alone but has to be seen alongwith the fact as to what is the agreed upon price for the purpose of determining transaction value. It is also observed that CBEC Circular dated 30/6/2000 (Para-5) also conveys the same interpretation regarding new Section 4 of the Central Excise Act, 1944. Therefore, appellant on merits has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pearing on behalf of the appellant argued that two refund claims of ₹ 3,53,077/- and ₹ 15,48,828/- were rejected by Adjudicating authority under Order-in-Original No. 178/05 dated 30/10/2009 and 236/05 dated 30/12/2005. That on appeals first appellate authority rejected their appeals under a common Order-in-Appeal dated 29/5/2006 as the issue involved in the appeals was the same. It was argued by the Learned C.A. that appellant is registered with the Central Excise authorities at Partapur as well as at Mathura for payment of excise duty. That normally the customers in Noida & Bulandsahar Area are given supplies from appellants Mathura Depot but due to operational constraints during the relevant period some of the supplies to Noi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs to be not paid and that unjust enrichment is not applicable as per larger bench judgment of S. Kumars Ltd. Vs. Commissioner of Central Excise, Indore [2003 (153) ELT 217 (Tri.-LB)]. 3. Shri Pawan Kumar Singh, Supdt. (A.R.) appearing on behalf of the Revenue argued that transaction value prevailing at Partapur has to be taken for the purpose of payment of duty which has been recovered from the customers/dealers. That on merits, appellant has no case. It was also the case of the Learned A.R. that excise duty amount recovered from the dealers will also attract unjust enrichment and refunds on that account are also eligible for rejection/transferable to Customer Welfare Fund as proposed in the show cause notice. Learned A.R. thus strongly d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such clearances was thus required to be paid at the agreed upon price (Transaction value) and not the value at which duty was paid. Transaction value under the existing Section 4 cannot be fixed based on the place of clearance alone but has to be seen alongwith the fact as to what is the agreed upon price for the purpose of determining transaction value. Our view is also fortified by the following observations made in para 10.8 of the case law Prestige Boards Pvt. Ltd. Vs. Commissioner of Central Excise, Calicut (supra) relied upon by the appellant. "10.8 As regards the period after 1/7/2000 for valuation, the concept of Transaction Value' has been introduced. In the concept of 'Transaction Value, each transaction is imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation regarding new Section 4 of the Central Excise Act, 1944. Therefore, appellant on merits has correctly filed the refund claims alongwith requisite documents and calculations. 6. So far as applicability of unjust enrichment, as mentioned in para 4 (ii) above is concerned, it is the case of the appellant that excess duty paid has not been recovered from the dealers. Appellant has supported their claim on the basis of 'certificates of the dealers, ledgers, invoices. Chartered Accountants Certificates etc. Once documentary evidences/certificates have been produced by the appellant to the effect that excess duty paid has not been recovered from the dealers then it has to be held that appellant has discharged its onus of non-recove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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