TMI Blog2017 (11) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... ok Jindal, Member (Judicial) and Mr. Devender Singh, Member (Technical) Sh. Srinivas Kotni, Advocate for the Appellant(s) Sh. Harvinder Singh, AR for the Respondents(s) ORDER The appellant is in appeal against the impugned order wherein refund claim has been rejected by the authority below. 2. The brief facts of the case are that the appellant entered into a contract for supply of telephonic instruments to M/s BSNL, Bihar. As per the purchase order, the prices are inclusive of all taxes, freight etc. The appellant was of the view that they were not liable to pay Sales Tax on these instruments as they are claiming exemption and applied for the exemption with the Sales Tax Department. Accordingly, the appellant raised in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are entitle for refund claim. It is further submitted that if the prices are inclusive all taxes or duties, in that circumstances bar of unjust enrichment is not applicable. To support this contention he relied upon the decision in the case of Cimmco Ltd. Vs. Collector of Central Excise, Jaipur 1999 (107) ELT 246 (Tribunal), Panibati Rubber limited Vs. CCE, Calcutta-II - 2001 (127) ELT 742 (Tri. -Cal), Monally Bharat Engg. Co. Ltd. Vs. CCE, Ranchi- 2004 (168) ELT 249 (Tri. Kolkata) and Subha Engineers Pvt. Ltd. Vs. CCE, Chennai-III 2005 (183) ELT 362 (Tri. -Chennai). 4. On the other hand Ld. AR reiterated the findings of the impugned order and submits that as Sales Tax has been paid by the appellant after discharging their contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p before this Tribunal in the case of Subha Engineers Pvt. Ltd. Vs. CCE, Chennai-III (supra) wherein this Tribunal observed as under:- 6 . We have gone through the rival contentions. In the brief facts of the case the entire circumstance leading to the refund claim have been detailed. Hence we do not want to repeat the same. It is very clear that the appellants quoted an amount of ₹ 621/- per piece without including the excise duty element as at the time of quotation no duty was payable. The fact that the price is inclusive of duty does not mean that the price includes duty element when the duty is nil. When the exemption was withdrawn, the appellants made Herculean efforts for the re-introduction of the exemption notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. In view of the above observations, we hold that the appellant is entitle for refund claim, accordingly, the impugned order is set aside. The appeal is allowed with consequential relief. (Dictated and pronounced in the open court) Per : Devender Singh 9. Having gone through the Final Order recorded by my Ld. brother Member (Judicial), I proceed to record a separate order. 10. I find that the appellants have claimed refund of excess duty paid on the clearances made during 07.06.2001 to 27.03.2002. The refund claim was filed on 05.07.2002. I find that the lower authority has rejected the refund application of the appellants on the ground that as per price clause of purchase order, any increase in taxes and other stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s) and the same is upheld. 12. The appeal of the appellants, being devoid of any merit, is dismissed. Difference of opinion As there is difference of opinion between both the Members, therefore, matter is place before the Hon'ble President to appoint third Member to decide the following issues:- (A) Whether the Member (Judicial) is correct holding that the amount of Service Tax paid by the appellant during the normal period of limitation was required to be deducted from the composite price of goods payable by the appellant and that amount of duty was not payable, therefore, for the excess amount paid by the appellant as duty, the appellant is entitle for refund on account of Sales Tax paid by them and bar of unjust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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