9911796707
TMI Blog2000 (7) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in favour of the appellants. In the mean time, the appellants made clearance of the goods on payment of duty under protest. Subsequently, they filed two refund claims for about Rs. 6.30 lakhs already paid as this refund application was rejected by the lower authorities holding that the duty had already been passed on to the buyers and therefore, refund would lead to unjust enrichment. The present appeal is directed against such orders. 2. Ld. Consultant representing the appellants in the hearing today, submitted that the bar of unjust enrichment is not applicable in the present case. The price fixed by the railways under the contract was a consolidated price. It was inclusive of duties. The railway also clarified the position. In their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal) wherein the Tribunal held as under :- "5. We have given careful consideration to the rival submissions. The clue to the problem in this case lies in a proper understanding of the provisions in the work order particularly with reference to the rates. There is an apparent conflict in what is stated in different parts of the schedule of rates. Thus, as against a note that the rates are inclusive of all duties, taxes and to and fro handling charges in one place there is another remark regarding the rates under the caption condition of contract which is more elaborate than the earlier referred to sentence. This reads as follows : (1) Rates The rates are inclusive of all materials, labour, equipment, lifts, leads, Sales-tax, octroi req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter there is no case of the department that excisable goods have come into existence at the hands of the appellant and that such duties were leviable and therefore, they should have been taken to have been provided for when the lump sum price was quoted. A question was put to the learned Counsel whether the break down of the lump sum amount is available with him to throw light on the question whether the said amount has been arrived at by the appellant after taking only the cost of materials used by them in the fabrication work and their job charges and profits and that there was no excise duty contained in such calculation. Learned Counsel stated that such data is not available with him today but it may be available with the appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that dispute with the department, it cannot be taken that the price quoted in the contract was inclusive of such an element of excise duty. We also enquired from the learned Counsel whether their application before the authorities for availment of the procedure under Rule 173-H was on their own initiative or whether they had been advised by the customer to avail of the same, but he had no reply to give. We wanted to know this to ascertain whether customer had advised them to avail of this procedure in which case it would be an indication that customer was also aware of the facility available under that procedure. In that case it can be stated with certainty that not only was the appellant aware of the non-dutiability aspect but the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the orders should be confirmed. 4. I have perused the records and considered the rival submissions. According to the contract, the prices were inclusive of excise duty. The subsequent letter from the railways indicated that no amount was provided towards excise duty while pricing was worked out. One letter specifically stated "E.D.-Nil". This would suggest that the price fixed under the contract did not provide for an element towards the Central Excise duty. This type of pricing remains covered by the decision of the CEGAT in the case of CIMMCO Ltd. wherein the Tribunal held that the bar of unjust enrichment would not be attracted when the price is inclusive of duties and taxes. Accordingly, following the decision of the CEGAT in C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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