TMI Blog1998 (6) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... l Consumer Welfare Fund established under Section 12C of Central Excise Act, 1944. 2. Arguing the case of the appellant, Shri D.G. Chaturvedi, learned Counsel stated that the appellant had entered into a contract with M/s. Indian Oil Corporation (IOC) 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 claimed refund. When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d., learned Counsel referred to the contract entered into by them with IOC and in particular referred to the conditions of contract with reference to the rates. He pointed out that as may be seen from the said documents the rates are inclusive of all materials, labour, equipments, lifts, leads, sales-tax, octroi required in connection with completion of work to the entire satisfaction of the customer, (IOC). It was contended that there is no reference to Central Excise duty in this paragraph regarding rates. The only levies which have been covered are sales-tax and octroi. The Assistant Collector s reliance on the sentence appearing in another part of the contract relating to the schedule of rates to the effect that rates are inclusive of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on a lump sum price of Rs. 54,396/- per tank wagon as per the provisions of the work order. The fact that the customer had certified that no separate excise duty was paid by them would clearly imply that the amount mentioned in the work order included the excise duty and that was why they were not paying excise duty separately. Shri Ali also pointed that when the appellant had applied for permission under Rule 173H, the Assistant Collector had given such permission subject to the condition that they should pay the duty. Since the question of dutiability had been raised by the Assistant Collector and the appellant had in acquiescence of such a permission carried the fabrication work and quoted a lump sum amount for such activity, it has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 required in connection with completion of work to the entire satisfaction of the Corporation. All the materials are to be supplied by the Contractor unless otherwise stated. (2) Rates shall be valid till the entire work is 100% complete, and no escalation will be considered at any stage. As pointed out by the learned Counsel the above mentioned condition refers specifically only to sales tax and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 can be produced by him later on. 6. For the foregoing reasons we hold that the Assistant Collector erred in coming to the conclusion with reference to the condition in the schedule of rates that the rates are inclusive of all duties and taxes, that the rates mentioned therein conclusively included the element of excise duty and therefore, the appellant should be held to have passed on the duty b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 customer also was equally aware of it in which case the question of duty burden being transferred to the customer would not arise. Notwithstanding this lack of information which would have clinched the matter, we feel that in the circumstances of the case, the correspondence exchanged by the appellant with the department all along in support of their case for availment of Rule 173H and other attendant fa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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