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TMI Blog2015 (9) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... t they have supplied Asbestos pipes to Tamil Nadu Water Supply and Drainage Board (TWAD Board) during the period 28.3.1998 to 31.8.1998 as per the contract price of the year 1997-98 pending receipt of the rate contract for the year 1998-99. Since TWAD subsequently reduced the contract price with retrospective effect from 28.3.1998, they filed refund claim as excess duty paid as per the revised rate contract for the said period. The adjudicating authority rejected the claim on limitation and on merits and the same was upheld by Commissioner (Appeals) in the impugned order. 3. Heard both sides. Ld. Advocate appearing for the appellant submits that they filed refund claim under Section 11B of refund of excise duty paid in excess. He submits t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearance was based on the invoice and there is no mention of any price variation either in the invoice or in the purchase orders. Since there was no change in the sale price quoted in the invoice it should be treated as transaction value. He also submits that refund claim is also hit by unjust enrichment. 5. Considered the submissions of both sides and examined the records. The short issue is whether refund is hit by limitation and doctrine of unjust enrichment would apply and whether appellants are eligible for refund as per the rate contract issued by TWAD Board w.e.f. 28.3.98. On perusal of the worksheet, I find that the appellant cleared the goods on payment of duty from March 98 to August 98 whereas the claim was filed on 27.11.98. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisional assessment. In the present case, since the rates are fixed by TWAD Board which is applicable for full year, there is no variation in the price and the supplier fixes the rate contract every financial year, clearances cannot be stopped and the appellant has to clear on a higher price till receipt of the fresh rate contract. 7. We find that on an identical issue, the Tribunal in the case of CCE Bhubaneswar Vs Jayshree Chemicals Ltd. (supra) has allowed the appeal in favour of assessee. Further, I find the Hon'ble Supreme Court in the case of M/s.HPL SOCOMAC Ltd. Vs CCE Gurgaon - 2015-tiol-117-SC-CX has allowed the appeal on identical of refund issue related to reduction in contract price after clearance and ordered for consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt together with interest at 9% per annum from November, 2002 till the date of payment." 8. The ratio of the Apex Court's decision is squarely applicable to the present appeal. When appellant had paid excise duty at higher price for the intervening period based on the previous year rate pending the receipt of the rate contract for the year 1998-99. Therefore, the appellants are eligible for refund of excise duty paid for the period 28.5.98 to 31.8.98. 9. By respectfully following the Apex Court's above decision, I hold that appellants are eligible for refund for the period from 28.5.98 to 31.8.98. As regards on the question of unjust enrichment, I find that unjust enrichment clause is not applicable in the present case as the TWAD ..... X X X X Extracts X X X X X X X X Extracts X X X X
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