2017 (6) TMI 366

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..... ere it was held that The value payable in a case where liquidated damages is applied would therefore be the consequent value and this would 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.
Mr. Devender Singh, Member (Technical) For the Appellant : None For the Respondent : Shri Satyapal, AR ORDER Per Devender Singh The brief facts of the case are that the appellants filed refund claim of ₹ 4,61,482/- under Section 173S of the Central Excise Rules 1944 on the ground that after having supplied the berths to various org .....

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..... led by this Tribunal in the case of 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 definition of transaction value in Section 4(3)(d), other decisions adverted to above were either on the basis of provisions of Section 4 prior .....

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..... 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. In view of above settled position, the appellant are entitled to refund on merits. However, as rightly pointed out by the learned AR, refund has to cross the barrier of unjust enrichment. Therefore 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. 7. In view of above, the matter is remanded back to the adjudicating authorit .....

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