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TMI Blog2017 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... constitute the "transaction value". - the appellant are entitled to refund on merits. The burden is on the appellant to produce necessary evidence that the incidence of duty has not been passed on by the appellant to any person - appeal allowed by way of remand. - Appeal No. E/994/2010 - Final Order No. 61001/2017 - Dated:- 31-5-2017 - Mr. Devender Singh, Member ( Technical ) For the Appellant : None For the Respondent : Shri V. K. Trehan, AR ORDER Per: Devender Singh The brief facts of the case are that the appellants filed refund claim of ₹ 22,09,139/- under section 173S of the Central Excise Rules 1944 on the ground that after having supplied the berths to various organs of the Railways as well as vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the buyer on account of liquidated damage should be allowed as deduction on transaction value has been settled by this Tribunal in the case of CCE, Hyderabad vs. Victory Electricals Ltd. (supra)- wherein this Tribunal has held as under: 16. Section 4 read with the definition of transaction value in Section 4(3)(d) enables levy of duty on the transaction value paid or payable for the goods. The value payable in a case where liquidated damages is applied would therefore be the consequent value and this would constitute the transaction value . 17. Except the decision of United Telecom (supra) followed in HFCL (supra) which are clearly and apparently after due consideration of provisions of the amended Section 4 read with definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontract and on account of delay in delivery of manufactured goods is liable to pay a lesser amount than the generically agreed price as a result of a clause (in the agreement), stipulating variation in the price, on account of liability to liquidated damages , irrespective of whether the clause is titled penalty or liquidated damages , the resultant price would be the transaction value ; and such value shall be liable to levy of excise duty, at the applicable rate. 6. Of the judgements relied upon learned AR, the judgement in CCE, Delhi-IV vs. CESTAT (supra) is based on the judgement of Mauria Udyog vs. CCE (supra), which has been distinguished by the Larger Bench of this Tribunal in its judgement in Victory Electricals Ltd. (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X
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