TMI Blog2011 (8) TMI 873X X X X Extracts X X X X X X X X Extracts X X X X ..... o the order of refund was on the ground that the claim was hit by principle of unjust enrichment. The lower appellate authority relying upon the decision in the matter of Telephone Cables Ltd. vs. C.C.E.,Chandigarh reported in 2003 (154) ELT 237, Birla Ericsson Opticals Ltd. vs. C.C.E., Bhopal reported in 2003 (157) ELT 97 has held that since clearances of goods were on provisional basis and settlement was made subsequently , the principle of unjust enrichment is not attracted. 3. The undisputed facts are that the respondents are manufacturer of explosives falling Chapter 36 of the First Schedule to the Central Excise Tariff Act, 1985. They had been supplying the explosives to Coal India Ltd. during the period 1.7.2003 to 29.2.2004. It is the contention of the respondents that such sale was on provisional price basis and subsequently, the prices were finalized. The provisional price was much higher than the price which was finalized and therefore, the respondents had filed refund claim in relation to excess duty paid by them. Being so, according to the respondents, there is no applicability of the principle of unjust enrichment. The claim is seriously disputed by the Departmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no concept called provisional price. In case there is any doubt about the price of the goods at the time of clearance, then it is the duty of the manufacturer to seek provisional assessment. The provisional assessment is different from the provisional price. 9. Any arrangement between the parties in relation to the price of the goods cannot override the statutory provision. Once the law requires that duty should be paid based on the price disclosed in the invoice issued at the time of clearance of the goods, mere subsequent reduction in price on the basis of some understanding arrived at between the parties cannot affect the duty liability in terms of the price disclosed in the invoice. Only exception to this is in a case where the manufacturer collects additional price by issuing a supplementary invoice. There is no provision under the law for issuance of supplementary invoices reducing the price. 10. The Tribunal in Commissioner of Central Excise , Madras vs. Addison Co. reported in 1997 (93) ELT 429 while dealing with the similar issue after taking into consideration the various provisions of law held thus:- "We observe that in terms of the scheme of this Section, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee will continue to remain eligible to the refund if available in terms of Section 11B. As mentioned above, the event of payment of excise duty is the one which gives rise to the cause for refund. The claim for refund is to be with reference to the date of payment of duty in respect of certain clearances and after that date if any other payment adjustments are made by the assessee with the customers, the same cannot be taken cognisance of for the purpose of Section 11B of the CEA, 1944. The scheme of Section 11B is so devised that if the duty burden has been passed on by the assessee then the buyer of the goods becomes eligible to the claim of refund. He (customer) has also to establish that duty burden has not been passed to any other person. This provision in law has been made to ensure that the refund is allowed only to the person who ultimately absorbs the duty burden. In this context it is relevant to note that duty burden is normally passed down line by the dealer as urged by the Revenue. In the above view of the matter, we therefore, hold that the appellants could not have been allowed the refund. We, therefore, allow the appeal of the Revenue and the Revenue can ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims under Sec. 11B in 1986 and at much later stage, apparently, after the insertion and coming into force of sub-sec. (2) to Sec. 11C from 1-7-1988, and even before the issue of notification under Sec. 11C on 21-12-1988 in respect of their goods, the appellants have sought to show that the duty incidence passed on had been remedied by issue of credit notes to customers. It is not possible to interpret sub-sec. (2) of Sec. 11C to accommodate such situations and to say that even when duty has been passed on to the customers at the time of clearance the assessee can still claim refund under Sec. 11C(2) of Central Excises and Salt Act by issuing credit notes. The Tribunal decision in the case of Collector of Central Excise v. Mahavir Spg. Mills (supra) does not also advance the case of the appellants as it was a decision relating to a demand of duty and not a refund claim rendered in the context of Sec. 11C prior to introduction of sub-sec. (2) thereto. In the result, there is no reason to interfere with the order passed by the Collector (Appeals) and the appeals are rejected." 12. Law being settled by the above decisions, we have no hesitation in holding that the authorities bel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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