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TMI Blog2016 (11) TMI 1203X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Duty and accordingly the amount found refundable to them have been rightly transferred to consumer welfare fund. 3. The brief facts in appeal No. 2185/07-EX are- Appellant is manufacturers of electronic (energy) meters. The same were sold to M/s Uttar Haryana Bjli Vitran Nigam Ltd. (UHBVNL). Under purchase order dated 31.10.2001 for supply of 65000 meters @ Rs. 1120/- per meter inclusive of Excise duty, Sales tax and Freight. The entire quantity was to be supplied by 31.03.2002. The prices were firm. However, clause 9 of the said purchase order provided that it is subject to terms and conditions of memo no. Ch. 344/QD-14/XEN/MMI dated 03.04.2001 which provided for periodical revision of the price depending on the price prev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The above facts have been confirmed by UHBVNL in reply dated 11.09.2003 to Revenue's letter dated 27.08.2003, & by DHBVNL in reply dated 29.09.2003. 7. Accordingly, the appellant filed refund claims with the concerned Assistant Commissioner for refund of the excess Excise Duty paid amounting to Rs. 15,68,647/- and Rs. 12,54,856/- respectively stating therein that they had paid duty at the rate of Rs. 141.78 per meter instead of the duty payable at the rate of 79.03 per meter. On the basis of final price of Rs. 600 per meter, actually paid by the buyers. The Assistant Commissioner vide O-I-O dated 01.09.06 admitted the amount refundable, but credited the same to the consumers welfare fund observing that - "I also find that party has sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been paid keeping in mind that the price was 1064/- and not 600/meter & subsequently accepts the price of 600/meter. They neither stopped the supply nor filed any suit against purchaser. This situation does not convince me. This simply reflects that while entering into contact the price factor was not reasonable and duty ought to have been paid on price actually paid or payable." This situation clearly indicates that all taxes were part of the price finally settled and rest of the details as mentioned by the party is artificial and the party could not put forward any concrete evidence to justify their pricing aspect and to say that duty incidence has not been passed on to the consumers. Hence, I hold that the duty incidence has been pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .III, Ghaziabad and a certificate dated 16.01.2003, depicting payment of Excise duty, basic value and other charges paid by the appellants. But on examination of invoices issued by the appellants to the said buyers, the adjudicating authority has observed that Central Excise duty has been shown in the invoices. Therefore, it is evident that Central Excise duty has been realized from their customers. I find that the appellants could not establish that the said duty amount of Rs. 15,68,647/- & Rs. 12,54,856/- has been paid by them and has not been passed on to others. Further, it is well settled that refund, even if otherwise due on merits, cannot be granted if the same does not qualify the test of unjust enrichment under Section 11B of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd supplied the same to the DHBVNL and where similarly price was settled against the interim price of 1,120/- at Rs. 600/meter, and it was held by the Apex Court that the original order was no-vated insofar as price was concerned. "11. We have heard learned counsel for the parties. It is clear that by their letter dated 15.04.2005 the original purchase order dated 31.10.2001 was no-vated insofar as price was concerned. 12. The novation turned out to be that a price of Rs. 600/-per meter had been charged. Rs. 600/-per meter being less that 5% of Rs. 700/-per meter if the penal rate of 5% was to be applied therefore became the price without reference to any penal rate. This price had been fixed before removal from the factory premises in Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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