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TMI Blog2005 (3) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... e of all duties, the meaning is that the price includes only the duty payable. We cannot presume that the excess duty paid by mistake is passed on to the buyer. In the present case, the sale price, no doubt, includes all statutory levies payable. That means, after some time the seller should not come to the buyer for extra amounts on the plea that further duty has to be paid to the Department. The presumption that the sale price includes duty erroneously paid in excess has no basis. More precisely, the sale price includes only the duty payable. Thus, there is no question of unjust enrichment. We allow the appeal with consequential relief. - DR. S.L. PEERAN, MEMBER (J) AND SHRI T.K. JAYARAMAN, MEMBER (T) Shri K.S. Ravishankar, Advocate, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... like Chartered Accountant s certificate, certificate of non-availment of Modvat credit by the buyer, etc., in support of the appellant s case of non-passing of the duty burden to the buyers. He relied on various case laws. 5. The learned SDR referred to the affidavit given by the purchaser in Para 4 which reads as follows :- 4. That the price of Rs. 6,50,000/- paid by our Company Shree Pomani Metals Alloys Ltd. is the net composite price inclusive of all statutory levies if any, including Customs Duty. This fact is clear from the Sales Invoice No. DTA/94-001 and DTA-94/002 dated 27-5-1994 and 30-5-1994 respectively issued by the supplier to us. Further he referred to the letter dated 27-5-1994 from the buyer wherein it is stated that the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t especially when appellant has been taking a stand from the beginning as to non-excisability of goods. It is worthwhile to briefly mention the facts of the case. In the above-mentioned case, the appellant had a contract with M/s. I.O.C. Ltd. for supply of 150 tank wagons; for supply, fabrication and mounting of heating coils inside tank wagons for LSHS service . The contract covered 150 tank wagons. They applied for permission under Rule 173H of Central Excise Rules for bringing duty paid wagons and other duty paid materials for such fabrication job. After obtaining necessary permission from the Department, they executed the work and cleared the tank wagons on payment of duty, as demanded by the Department, under protest. Thereafter they c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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