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CCE, Hyderabad-IV Versus M/s Victory Transformers & Switchgears Pvt. Ltd.

2016 (7) TMI 1114 - CESTAT HYDERABAD

Refund - unjust enrichment - price revision after clearance of goods - their buyer M/S APCPDCL has reduced the basic prices subsequent to their clearances - Held that:- It is a fact that the Commissioner (Appeals) has not addressed the issue of unjust enrichment which the original authority had held as affecting the refund claim. We therefore find ourselves in agreement with the plea put forth by Revenue and remand both the appeals to the original authority for addressing whether the refund clai .....

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e appeared for the respondent. Being an old matter the case was taken for disposal after hearing the department and perusal of records: The facts of the case are that the respondent M/S Victory Transformers & Switchgears Private Limited, Jeedimetla, Hyderabad, Andhra Pradesh, is a manufacturer of Electrical Transformers falling under Tariff Item Nos. 85043200 and 85043300 of the First Schedule to the Central Excise Tariff Act, 1985. The Electrical Transformers are supplied to various Distrib .....

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ority noticed that they did not submit the relevant purchase orders relating to the refund claim filed on 14.02.2008. On pointing out, they filed some documents on 02.04.2008. After verification of the records, show cause notices were issued for rejection of refund claims on the following grounds: (a) The assessee failed to give in writing the reasons for payment of duty on provisional basis under Rule 7 of the Central Excise Rules, 2002 on the goods cleared for the period claimed in the applica .....

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t for arriving at the transaction value as per Section 4(3)(d) of the Central Excise Act, 1944 and also on the ground that the assessee failed to produce the relevant documents in support of the claim, under the provisions of Section 11 B read with Section 12 A of the Central Excise Act, 1944. Aggrieved by the above order, the assessee filed an appeal before the Commissioner (Appeals) who vide Orders-in-Appeal Nos. 55 & 56/2009 (H-IV) CE dated 24.11.2009 held that they are entitled for refun .....

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PSEB) against the approved Tenders. As per the Purchase Order conditions, the assessee is required to supply the goods as per the Purchase Orders and in case of delay in the supply schedule, the value of the goods shall be reduced by 0.5% per week of delay subject to a maximum of 5%. The abatement claimed by the assessee on penalties levied/damages claimed by the buyer for non-fulfillment of the conditions of the agreement i.e. delay in supply of the goods is not permissible under Section 4 of t .....

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fore, confirmed that the assessee has realized the full amount of duty on the basic price and not on the reduced price. Consequently, no refund arises on merits as well as on grounds of unjust enrichment. In terms of Section 11 B (1) of the Central Excise Act, 1944, any person claiming refund of any duty of Excise is required to enclose the documentary or other evidence including the documents referred to in Section 12 A of the Act ibid to establish that the amount of duty of incidence of such d .....

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of contract/obligation and does not relate to the value of the goods. Hence, the refund claim is hit by doctrine of unjust enrichment provided under Sec 11 B of the Central Excise Act, 1944 as held by the adjudicating authority in the Order-in-Original. Commissioner (Appeals) has relied on the decisions of Hon'ble CESTAT in the cases of United Telecom Ltd., Vs CCE, Bangalore, [2006 (204) E.L.T. 626 (Tn-Bang)] and CCE, Chandigarh, H.F.C.L. [2008 (231) E.L.T. 307 (Tri-Del)] wherein the above d .....

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