TMI Blog2006 (9) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ed clearance of the goods on payment of duties under protest as the products had been classified under classification 4009.92. The respondent filed two applications for refund of Rs. 6.30 lakhs, which had already been paid by way of excise duty. The said applications were rejected by the authorities under the Act (Central Excise and Salt Act, 1944) opining that the same would amount to unjust enrichment. The respondent preferred an appeal before the Customs, Excise Gold (Control) Appellate Tribunal, which was registered as Appeal No. E/R.79/98. The question, which arose before the Tribunal, was: "As to whether the goods supplied to the railway administration included the element of excise duty?" The Tribunal for determining the issue went through the correspondences exchanged by and between the contracting parties, as also the certificate issued by the railway administration and held: "I have perused the records and considered the rival submissions. According to the contract, the prices were inclusive of excise duty. The subsequent letter from the railways indicated that no amount was provided towards excise duty while pricing was worked out. One letter specifically stated "E.D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment was not attracted in the instant case the questions as framed in our view do not require any-answer since we agree that having paid the excise duty under protest and there being a subsequent finding that no excise duty was payable in respect of the goods, the respondent company was entitled to refund and there was no question of unjust enrichment in the instant case." 6. Mr. Harish Chander, learned Senior Counsel appearing on behalf of the appellant submitted that - (i) The Tribunal and consequently, the High Court committed an error in passing the impugned judgment in so far as they failed to take into consideration that the question, 'As to whether the price included excise duty or not?', was a comprehensible one, having regard to the terms of the contract. (ii) Subsequent correspondence by and between the respondent and the railway administration were wholly irrelevant. 7. Mr. K.V. Vishwanathan, learned counsel appearing on behalf of the respondent, on the other hand, contended - (i) The findings of the Tribunal being findings of fact, this Court should not interfere therewith. (ii) The question as to whether the assessee has passed on the element of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground that a duty had to be paid. It is also not in dispute that clarifications were obtained by the respondent from the Railway Administration specifically in this behalf. The railway administration by its letter stated: "Assistant Controller Controller of Stores Central Excise Department N. Rly. Khardah Division Baroda House 4 Barabourne Road New Delhi. Calcutta-700 001 Sub: This Office Purchase order of 07938759101595 dated 10-5-93 for the supply of Hose Pipe VB. 504/ M Fix 10,000. Ref: Firm Letter No. BPE/Sales/M2 (19-D-11-7-01). This Office Purchase order 07923259101595 dated 10-5-93 for the supply of Hose Pipe VB. 504/M @ Rs. 48.65 each and 4/CST - E.DC Nil Spare copy of the same enclosed for your ready reference :- Sd/ Illegible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere required to compute the value in terms of Section 4(4)(d) of the Central Excise Act, 1944. 16. The respondent, in his counter affidavit, categorically stated: According to the said provision, the value on which duty was payable did not include the amount of excise duty payable. Accordingly, though the contract price did not include any amount on account of duty, the respondent had to deduct from the contract price the amount of duty it was required by the Central Excise Authorities to pay under sub-heading No. 4009.92 in order to arrive at the value and the amount paid under pro test was worked out accordingly. In the Central Excise gate-passes in form No.GP. 1 and the Central Excise price-lists filed under Rule 173C of the Central Excise Rules, 1944 (hereinafter referred to as "the Rules"), the respondent mentioned the assessable value and duty in accordance with the provisions of Section 4(4)(d)(ii) by breaking up the contract price although the same did not include any amount on account of excise duty. In the in voices raised on the Railways, the respondent mentioned the contract-price without any break-up. In this connection, specimen copies of excise gate- passes in fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rice from its distributor M/s NIIL. It was argued that excess duty collected by NIIL represented only 1.62% of the total price. It was argued that resale price charged by M/s. AGIL to its dealers had no relevance to excess excise duty paid by M/s. AGIL to NIIL at the time of purchase as the sale price charged by M/s. AGIL to its dealers was based on the prevailing market price. We do not find any merit in this argument. In the present case, the refund claim is made by a buyer and not by the manufacturer. The buyer says that he has not passed on the burden to its dealers. The buyer has bought the goods from the manufacturer paying the purchase price which included cost of purchase plus taxes and duties on the date of purchase. In such cases, cost of purchase to the buyer is a relevant factor. None of the authorities below have looked into this aspect. Even the Appellate Tribunal has not gone into this relevant factor. It has merely quoted the passages from the order of the lower authority, whose order was impugned before it. Costing of the goods in the hands of the distributor, the cost element and the treatment given to purchases by the buyer in his own account were relevant circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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