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2023 (7) TMI 476 - AT - Central ExciseRefund claim - value of the software is includable in the assessable value of hardware or not - denial on the sole ground that the Chartered Accountant’s Certificate produced by the appellants - whether the appellants' claim for refund of duty paid is hit by the bar of unjust enrichment? - HELD THAT:- On going through the contracts/purchase orders, it is seen that the same are for a value which is inclusive of Excise duty, Sales Tax, Fright/Insurance/ Packing/Forwarding, Documentation, Training charges, Octroi and any other charges; this indicates that the consideration paid by MTNL/BSNL is inclusive of taxes payable; in the schedule the value of software, for each of the hardware items, is indicted per unit and the total price thereof. However, in respect of the purchase order dated 12/02/2001 indicates under bill of material that the Excise Duty and Sales Tax payable for software, as at Row no. 1.3b and 1.5b, to be 0%. However, there is no indication whatsoever to show that such duty paid by the appellants was not reimbursed by their customers. The duty and the value are shown under Invoice no. 340 dated 12/12/2001. In addition to these, no other record or evidence has been produced by the appellants. To substantiate their claim of not passing on the incidence of duty under the circumstances, it is found that there is considerable force in the argument of the Revenue that the invoice issued under statutory provisions does not indicate that the incidence of duty has not been passed on. CESTAT, New Delhi in the case of INTERACH BUILDING PRODUCTS (P) LTD. VERSUS COMMR. OF C. EX., GHAZIABAD [2005 (1) TMI 208 - CESTAT, NEW DELHI] held that When they were paying the duty under protest, it is difficult to accept that they did not charge duty from their customers. They in fact indicated the duty separately in their invoices while clearing the goods with an intention to make it known to their customers/buyers, the duty involved on the cleared goods and requiring them to pay the same. There are no merit in the appeal filed by the appellants. In the result, the appeal is dismissed.
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