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2017 (7) TMI 162 - AT - Central ExcisePrice variation clause - refund of excess paid duty - rejection on the ground that whatever price was charged at the time of clearance the same cannot be varied for any reason - Held that: - in case of price variation clause on the basis of raw material cost the final price as per the raw material cost has to be taken as transaction value, therefore, the provisional price on which the goods are cleared from the factory and duty paid thereon is not the final price. Accordingly, if there is any excess payment between the value charged at the time of clearance and value finalised on the basis of price variation clause the excess paid duty, if any arise, is refundable. Since the excess paid duty is on the excess value, which is not the price paid or payable by the customer, the unjust enrichment is not applicable - refund allowed. Liquidated damages - scope of SCN - Held that: - if there is a deduction in the price due to liquidated damages, that is not permitted to be deducted from the transaction value for the reason that the liquidated damages is part of the cost to respondent that has to be considered as their expenditure which will not affect the transaction value. However, since this issue has not been considered by the Commissioner (Appeals), the matter needs to be remanded to the Commissioner (Appeals) only for a limited purpose to decide the issue - matter on remand. Appeal disposed off - part matter decided in favor of assessee and part matter on remand.
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