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TMI Blog2023 (12) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... Concrete (PSC) sleepers supplied during the period September 2009 to January 2010. The appellant cleared PSC sleepers on payment of duty at the rate of Rs. 1291.97 and Rs. 1286.7 per sleeper, against the agreement entered into with Railways. The agreement contains a price variation clause. That is to say, the price of sleepers was subject to price variation clause, which reads as under: "The accepted rate will vary in accordance with the price variation formula as detailed below in clause 13.2, to take into consideration variation in prices during execution of contract. Price variation will be worked out by taking into consideration the Indices for the month of production." 3. The appellant submits that subsequent to clearance of sleepe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom time to time; that the final payment would be made as per the escalated/de-escalated worked out price on the basis of price variation clause. The Commissioner (Appeals) further observed that the Appellant should have opted for provisional assessment as per Rule 7 of the Central Excise Rules. He further observed that duty is chargeable under Section 4 of the Act, with reference to the value on each removal of the goods, on such value being the transaction value for delivery/clearance at the time and place of removal. Thus, there is no express provision to consider the reduction of value for any reason, subsequent to the removal. Further observed that except Rule 7 of CCR, there is no provision for adjusting the transaction value on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of unjust enrichment, is by way of obiter dicta and has no legal sanctity. 7. So far the ground of unjust enrichment is concerned Learned Counsel reiterates that, admittedly there is price variation clause in the agreement. Learned Counsel further draws our attention to Letter No. A/SA/R BC/Bills/10-11/CS-160/PRIL dated 18.08.2010 issued by Assistant Accounts Officer - Purchase, of South Central Railway, addressed to the Appellant on the subject - deductions made against the Bill submitted against CS- 160/2007, Agt No. W.456/PSCs/PRIL/CS-160/182375. In this letter it is categorically mentioned that - out of the amount payable to the Appellant for the supply in question, have made recovery due to downward revision of price for Rs. 69,14, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner of Central Excise, before the expiry of one year from the relevant date, in such form and manner as may be prescribed and the application shall be accompanied by such documentary or other evidence (including the documents referred to in Section 12A) as the applicant may furnish to establish that the amount of duty of excise and interest, if any, in relation to which such refund is claimed was collected from, or paid by him and the incidence of such duty and interest, if any, paid on such duty, have not been passed on by him to any other person; provided further that the limitation of one year shall not apply where any duty and interest, if any, paid on such duty has been paid under protest. 11. Subsection (2) of Section 11B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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