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TMI Blog2008 (1) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... ntered into a contract with M/s. Coal India Ltd. for supply of explosives to various collieries. As per the contract, the prices were provisional and were subsequently finalised on the lower side as compared to prices approved during the period 2000-2001. Since the clearances were made on the higher side upto the date of finalisation, the assessees filed claims for refund of Rs. 9,40,305/- and Rs. 3,64,465/- being the excess duty paid on excisable goods cleared to the collieries. Show cause notice proposing rejection of the refund claims was issued and adjudicated as under :- (1) The claim for Rs. 9,40,305/- was held to be admissible on merits but was ordered to be transferred to the Consumer Welfare Fund under Section 12C of the Cent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order-in-original dated 1 / 12-8-2003 for transfer of the sanctioned amount to the Consumer Welfare Fund and remanding the issue of refund of Rs. 3,64,465/- covered by order-in-original dated 30-11-2004, to the original authority for the purpose of examining the aspect of unjust enrichment. In the present appeals, the Revenue is challenging the sanction of the refund claim on merits. 3. I have heard both sides and find that on merits the issue stands decided against the Revenue and in favour of the assessees by Tribunal's earlier decision in the assessees' own case, as seen from order No. A/1085-1088/WZB/05 dated 21-7-2005, which has been upheld by the Hon'ble Bombay High Court in its order dated 31-8-2007 in Central Excise Appeal Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation for price variation on account of copper as per standard price variation table in terms of initial tender. The assessee had paid excise duty on higher amounts than what was received by them as price of cable from DOT. The department refused to refund excise duly on the ground that price was reduced after clearance of the goods and as such the assessee was not entitled for refund of duly for reduced price. In the said judgment it has been held that since clearance was not against fixed price and price was subject to fluctuation the assessee was entitled to refund. 9. In the case of MRF Ltd. (supra) the Apex Court has held that once the assessee clears the goods on the classification and price indicated by him at the time of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the application for refund was made on the ground that price was reduced by Oil Company to whom cylinders were supplied by the assessee. In this factual background, the Apex Court relying upon the ratio laid down by the Apex Court in the case of MRF Ltd. held that subsequent reduction in price would not entitle the assessee to claim refund. It is thus clear that the facts in the said case are not similar to the facts in the above appeals. Therefore, the ratio laid down in this case also does not advance the case of the revenue. 12. Having carefully considered the submissions made by learned counsel and having perused the judgments relied upon by the revenue and assessee, we are of the considered opinion that the ratio laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the respondents that the claims for refund are admissible on merits. However, the question as to whether the assessees have passed on the incidence of duty to their customs is required to be examined afresh by the original adjudicating authority - reliance placed by the assessees on the Tribunal's decision in Universal Cylinders Ltd. v. CCE, Jaipur-I - 2004 (178) E.L.T. 898, to support their contention that they have not passed on the duty burden to the customers and, therefore, remand is not called for, is misplaced as in that case the customer refused the price of goods and deducted the difference amount from payment made to Universal Cylinders Ltd., while in the present case there is nothing to show that the entire amount ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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