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TMI Blog2007 (10) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... that duty is not payable we cannot say that price includes duty it means, assessee only has borne the incidence of duty – Refund admissible. X X X X Extracts X X X X X X X X Extracts X X X X ..... here cannot be any unjust enrichment In the case of CCE Calcutta-III v. Panihati Rubbers Ltd. - 2004 (172) E L T 310 (Cal) = 2004 (61) RLT 19 (Cal), it was held that when the contracted price was inclusive of duty and Excise duty was not paid by the buyer, the bar of unjust enrichment is not applicable. The other case relied on by him is CCE, Calcutta-III v. Panihati Rubbers Ltd. reported in 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue is not correct. Whenever there is a contract which is inclusive of Excise duty, the price includes the duty only when the duty is payable. In such contracts whether the duty is leviable or not, the price contracted is fixed. In such cases, if it is held that the duty is not payable then we cannot say that the price includes Excise duty. From the records and also from the submissions of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s shows that what has received by the respondent from the buyer is only the contracted price. When Excise duty is not payable on the impugned goods, the contracted price does not include the Excise duty at all That means, the respondent only has borne the incidence of duty When the duty is not payable and when the same has not been passed on to the buyer, the respondent is entitled for the refund ..... X X X X Extracts X X X X X X X X Extracts X X X X
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