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TMI Blog2016 (11) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... admitted facts, the appellant has not received a single rupee more than the settled amount of ₹ 600/- per meter from the buyers, there is no case of unjust enrichment made out. Accordingly relying on Ruling of Apex Court in the case of HPL Socomax Ltd. [2015 (5) TMI 492 - SUPREME COURT] we hold that the appellant is entitled to refund. Allowing the appeals of the appellant we direct the revenue authority to grant the refund within 90 days from the receipt of this order along with interest as per the Rules - appeal allowed. - APPEAL No. E/2185 & 2186/2007-EX(DB) - FINAL ORDER NO-70802-70803/2016 - Dated:- 10-6-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri J.P. Kaushik, Advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E/2185/07 E/2186/07 a. Purchase order record for (in No. of meters) 65,000/- 65,000/- b. Meters supplied by due 30,000/- 14,997/- c As per purchaser Board- Balance duty to be supplied at interim price per meter, in clusine of E. duty, S. Tax, Freight+Ins. under the purchase agreement 1,064/- 1,064/- d. Offer accepted on 12/04/02 12/04/02 e. Price settled per meter, by the Boards (in clusine of taxes, freight ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise Duty paid amounting to ₹ 15,68,647/- and ₹ 12,54,856/- respectively stating therein that they had paid duty at the rate of ₹ 141.78 per meter instead of the duty payable at the rate of 79.03 per meter. On the basis of final price of ₹ 600 per meter, actually paid by the buyers. The Assistant Commissioner vide O-I-O dated 01.09.06 admitted the amount refundable, but credited the same to the consumers welfare fund observing that - I also find that party has shown the Central Excise duty on their invoices issued to M/s UHBVNL or DHBUNL and it appears that it has been realized from their customers. Party also could not establish that the said duty amount has been paid by them and the incidence of such duty ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply reflects that while entering into contact the price factor was not reasonable and duty ought to have been paid on price actually paid or payable. This situation clearly indicates that all taxes were part of the price finally settled and rest of the details as mentioned by the party is artificial and the party could not put forward any concrete evidence to justify their pricing aspect and to say that duty incidence has not been passed on to the consumers. Hence, I hold that the duty incidence has been passed on to the consumers and hence need to be credited to the Consumer Welfare Fund as per the provisions of Section 11B of Central Excise Rules, 1944. I have also found that the case do not fall under the purview of time barred. As p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicating authority has observed that Central Excise duty has been shown in the invoices. Therefore, it is evident that Central Excise duty has been realized from their customers. I find that the appellants could not establish that the said duty amount of ₹ 15,68,647/- ₹ 12,54,856/- has been paid by them and has not been passed on to others. Further, it is well settled that refund, even if otherwise due on merits, cannot be granted if the same does not qualify the test of unjust enrichment under Section 11B of the Central Excise Act, 1944. In the instant case such test of unjust enrichment has not been qualified as aforesaid. Therefore, I am inclined to hold that amount of refund has been rightly credited to the Consumer We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsofar as price was concerned. 11. We have heard learned counsel for the parties. It is clear that by their letter dated 15.04.2005 the original purchase order dated 31.10.2001 was no-vated insofar as price was concerned. 12. The novation turned out to be that a price of ₹ 600/-per meter had been charged. ₹ 600/-per meter being less that 5% of ₹ 700/-per meter if the penal rate of 5% was to be applied therefore became the price without reference to any penal rate. This price had been fixed before removal from the factory premises in May, 2002. The Commissioner (Appeals) order dated 18.06.2004 though correct in principle is wrong on facts as he does not refer to the letter dated 15.04.2005 of the appellant at all. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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