TMI Blog1998 (11) TMI 607X X X X Extracts X X X X X X X X Extracts X X X X ..... clear the same on payment of duty till 6-12-94. The Assistant Commissioner vide his impugned order, has rejected the refund claim on the ground of unjust enrichment He has observed that no excise duty has been shown separately in the final invoices issued by the appellant, the same has been shown to have been paid to the Department in the Central Excise invoices and from a comparison of Central Excise invoices and the final invoices, it is clear that the final payment has been received from their buyers inclusive of Central Excise duty. On an appeal against the above order, the same was upheld by the Commissioner s appeal. Hence the present appeal before the Tribunal. 2. Appearing for the appellant, Shri K.K. Bhattacharjee, ld Consultant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r customers. In support of his proposition, he relies on the Tribunal s decision in the case of Collector of Central Excise, Chandigarh v. Metro Tyres Ltd. [1995 (80) E.L.T. 410]. In the circumstances, he prayed that the appeal be allowed and the Department be directed to grant the refund of the excess duty paid by them. 3. Countering the arguments, Shri T. Premkumar, ld. SDR reiterated the reasoning of the authorities below. He submitted that a comparison of the final invoices and excise invoices issued by the appellant clearly shows that the excise duty element has been made a part of the final price though it has not been shown separately in the invoices. Accordingly, he prayed for rejection of the appeal. 4. I have considered the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t sweet will of the appellant to increase/decrease the final price of the yarn. As such, the fact that whether the duty has been paid by them or not - paid will not have any bearing on the final price of the goods. Even if, the appellant would not have paid the duty during the material for the purposes of this appeal in terms of the Notification exempting the yarn, they were still duty bound to clear the yarn at the price at which they have cleared. In the case of Karnataka Antibiotics Pharmaceuticals Ltd. v. Collector of Central Excise, Bangalore reported in 1996 (83) E.L.T. 114 (T) = 1996 (13) RLT 258 (CEGAT - SRB), it was held that where maximum retail price of drugs is fixed by the Drug Controller statutorily, variation in duty elemen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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