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TMI Blog2008 (12) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... will not be the transaction value applicable for assessment of clearances. As the relevant assessable value gets finalized in such cases after the clearances on payment of duty, payments made following settlement between the assessee and its customers cannot be held to be post-clearance adjustments of the assessable value or the duty due – refund is allowed - revision of prices governing clearances of excisable goods under a contract containing price variation clause does not involve unjust enrichment. X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess amount of duty to the tune of Rs. 1,16,067/- and claimed rebind of the same after the respondents made over the excess payment made to CIL. The claim for refund of the excess duty paid was rejected by the original authority on the ground of unjust enrichment involved in sanctioning the refund. In, the impugned orders, the Commissioner (Appeals) found that no unjust enrichment was involved in sanctioning the refund of the excess duty paid. The Commissioner (Appeals) had relied on a decision of the Tribunal in Universal Cylinders Ltd. v. CCE Jaipur, 2004 (178) E.L.T. 895 (Tri-Del.), which had dealt with admissibility of refund on account of retrospective reduction of prices of goods cleared under contract with price variation clause. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss duty collected initially by raising credit notes or otherwise. 3. Heard both sides. Ld. JCDR submitted a copy of a decision of the Larger Bench of the Tribunal in Grasim Ind. (Chemical Divn.) v. CCE Bhopal, 2003 (153) E.L.T. 694 (Tri.-LB) which had affirmed the view held by the Tribunal in M/S. S. Kumar's Ltd. (supra), to the effect that objection to grant of rebind of excess duty reimbursed from the buyers to the assessee could not be remedied by issuing credit notes to the buyer of the excisable goods. The ld. counsel for the respondents relied on a large number of decisions of the Tribunal wherein it was held that the principle of unjust enrichment was not attracted when the assessee had returned the excise duty/service tax collected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to obtain the refund without objection of the department from the angle of unjust enrichment. I find that in both these cases, excess duty had been paid by the respective assessees on a firm value. The assessees claimed refund in these cases on the ground that they had paid the duty not due as per law. I find that it is settled by the judgment of the apex court in the case of MRF Ltd. v. CCE Madras, 1997 (92) E.L.T. 309 (S.C.) that "Once the assessee has cleared the goods on the classification and price indicated by him at the time of the removal of the goods from the factory gate, the assessee becomes liable to payment of duty on that date and time and subsequent reduction in prices for whatever reason cannot be a matter of concern to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein the Tribunal approved grant of refund when the price of the goods was reduced retrospectively in terms of a contract the Tribunal underlined the above principle as follows:- "4. The above terms would clearly show that the price agreed between the parties is subject to fluctuation. Clearance was not against firm price. The stand taken by the Revenue that it is a case of post-sale reduction of price is not correct Price reduction in respect of quantity of cable delivered during the extended period has been specifically agreed upon between the parties under the terms of the agreement. Therefore, it has to be taken that as and when such goods were cleared, the price was only the reduced price eligible under the terms of the agreement." 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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