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TMI Blog2018 (5) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the appellant that the sales tax dispute was settled against them later will not have any bearing as the invoice and the assessments were on the claim of the appellant that no sales tax was paid or payable. The assessment being final and excise duty has been discharged correctly with no indication of sales tax 'payable' or 'paid' , no variation in assessable value later is permissible. Appeal dismissed - decided against appellant. - E/798/2007 - FINAL ORDER NO. 61997/2018 - Dated:- 26-3-2018 - Mr. Ashok Jindal, Member (Judicial) and Mr. Devender Singh, Member (Technical) Sh. Srinivas Kotni, Advocate, for the Appellant(s) Sh. Harvinder Singh, AR for the Respondent(s) ORDER Per : Ashok Jindal The appellant is in appeal against the impugned order wherein refund claim has been rejected by the authority below. 2. The brief facts of the case are that the appellant entered into a contract for supply of telephonic instruments to M/s BSNL, Bihar. As per the purchase order, the prices are inclusive of all taxes, freight etc. The appellant was of the view that they were not liable to pay Sales Tax on these instruments as they are claiming exempti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Heard both the sides and considered the submissions. 6. We find that the price as per the purchased order is inclusive of all taxes including Sales Tax which was leviable at the time of clearance of goods but the appellant was under bonafide belief that they are not liable to pay Sales Tax on their goods and applied for exemption. The said exemption was denied to the appellant. Consequently, the appellant was required to pay Sales Tax for the goods already cleared by them. It is not a case where levy of Sales Tax came after completion of the contract by the appellant, in fact, Sales Tax levy was there at the time execution of contract or supply of the goods and appellant did not pay Sales Tax at that time which was paid later on. Further, as the price was inclusive of all taxes including Sales Tax, in that circumstances, the transaction value of goods has to be determined accordingly. Therefore, the amount of Sales Tax paid by the appellant during the normal period of limitation was required to be deducted from the composite price of the goods payable by the appellant and on that amount, the duty was not payable. In that circumstance, we hold that the appellant is entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, we hold that bar of unjust enrichment is not applicable to the facts of this case. 8. In view of the above observations, we hold that the appellant is entitle for refund claim, accordingly, the impugned order is set aside. The appeal is allowed with consequential relief. (Dictated and pronounced in the open court) Ashok Jindal Member (Judicial) Per : Devender Singh 9. Having gone through the Final order recorded by my Ld. brother Member (Judicial), I proceed to record a separate order. 10. I find that the appellants have claimed refund of excess duty paid on the clearances made during 07.06.2001 to 27.03.2002. The refund claim was filed on 05.07.2002. I find that the lower authority has rejected the refund application of the appellants on the ground that as per price clause of purchase order, any increase in taxes and other statutory duties/levies shall be to the contractors account. The said clause is reproduced below:- That the prices are firm and are inclusive of ST, ED and other statutory duties/levies etc. and Freight, packing forwarding charges. Any increase in taxes and other statutory duties/levies after the expiry of deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been produced. (Order pronounced in the court on 01-11-2017) (Devender Singh) Member (Technical) (Ashok Jindal) Member (Judicial) Per. B. Ravichandran :- The issue referred to the third Member for a decision is regarding entitlement of refund claim filed by the appellant. The difference of opinion between the two members of the Division Bench referred to is as below :- (A) Whether the Member (Judicial) is correct holding that the amount of Service Tax paid by the appellant during the normal period of limitation was required to be deducted from the composite price of goods payable by the appellant and that amount of duty was not payable, therefore, for the excess amount paid by the appellant as duty, the appellant is entitle for refund on account of Sales Tax paid by them and bar of unjust enrichment is not applicable to the facts of this case or (B) Whether the Member (Technical) is correct holding that any increase in duties, tax levy after expiry of delivery date has no bearing on the price of the past clearances, therefore, any increase in duty tax is to be borne by the appellant from their account, particularly when no docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled for refund of differential central excise duty in terms of Section 4 readwith Section 11B of the Central Excise Act, 1944. The facts of the case are not in dispute. I have perused the terms of contract as well as the invoices issued by the appellant during the material time. The sale value of the goods are fixed at ₹ 265/- per unit. Admittedly, the said sale price includes all taxes and duties which are to be borne by the appellant. The transaction value as per Section 4 means the price actually paid or payable for the goods, when sold, and includes in addition to the amount charged as price, any amount that the buyer is liable to pay to, or on behalf of the assessee, by reason of, or in connection with the sale, whether payable at the time of the sale or at any other time, including, but not limited to, any amount charged for, or to make provision for, advertising or publicity, marketing and selling organization expenses, storage, outward handling, servicing, warranty, commission or any other matter; but does not include the amount of duty of excise, sales tax and other taxes, if any, actually paid or actually payable on such goods. 5. Admittedly, in the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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