TMI Blog2008 (4) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Balbir Singh, Advocate, for the Respondent. [Order per : S.S. Kang, Vice-President]. - Heard both sides. Revenue filed this appeal against the impugned order whereby the refund claim filed by the respondent was allowed. 2. Brief facts of the case are that the respondents are engaged in the manufacture of telecommunication items. During the month of July'01 to Dec'01, the respondent cleared the goods to Bharat Sanchar Nigam Ltd. (BSNL) in terms of the purchase order. Thereafter the BSNL has extended the delivery period of the goods up to 14-8-01 with damaged charges in the event of late supply of goods. It is also part of contract that the supply of goods shall be at provisional unit price @ 90% of the price indicated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed on their buyer as requested under Section 11-B of Central Excise Act, 1944. On this aspect the Appellants has produced calculation chart and certificate issued by Chartered Accountant, confirming non-payment of an amount of Rs. 66,25,632.00 involving Central Excise duty of Rs. 9,10,911.00 by BSNL against the supplies made by the Appellants in lieu of purchase order involved therein. It is an admitted fact in the Show Cause Notice that party received payment on lower side. Once it is not in dispute that party did not receive an amount of Rs. 66,25,632.00 from BSNL for supplies made, it is clear that duty involved therein amounting to Rs. 9,10,911.00 has not been paid by BSNL to the Appellants. Therefore, the Appellants have proved bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust enrichment the contention of the respondent is that it is admitted in the SCN that the respondent received payment on lower side, therefore, question of passing on the burden of duty does not arise. 6. We find that in this case the goods were cleared by the appellant during the period July, 2001 to Dec'2001 and during this period as the provisions of Section 4 of the Central Excise Act, transaction value is the basis for making assessment in respect of the goods manufactured and cleared by the manufacturer. The decisions relied upon by the Revenue are that period prior to the amendment when wholesale price was the basis for assessment of the goods manufactured. We find that the case of the United Telecom Ltd. (supra) is fully ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctually paid or actually payable on such goods". 7. As the liquidated damages are not to be considered as in the nature of penalty, therefore, in view of the above decision, the respondents are entitled for the refund. In respect of unjust enrichment, we find that even in the SCN it is admitted fact that respondent received the amount in respect of the goods cleared by them on lower side and this fact is not disputed in the present appeal. Once it is not disputed that the respondent had not received the amount in question therefore, the respondent had discharged the onus that burden of duty has not passed on. In view of the above, we find no infirmity in the impugned order. The same is dismissed. (Order dictated in the open Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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