TMI Blog2005 (6) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... w.e.f. 1-7-2000. With the introduction of 'transaction value', the appellants on a belief that coating value is also includible in the transaction value of bare pipes, on 5-9-2000, paid Excise Duty on coating value on the clearance effected during the period 1-7-2000 to 31-8-2000 as also in respect of bare pipes lying in stock as on 31-8-2000. This amount worked out to Rs. 35,03,023/-. 2.2 Vide Circular dated 3-1-2001, Central Board of Excise and Customs clarified that the condition of the goods when they are cleared from the factory is relevant for the purpose of paying excise duty, as also where such an activity carried out in separate factory does not amount to manufacture, no duty can be recovered on value added by such activity. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above contention of the Assistant Commissioner is to be determined in light of - (i) CBEC vide Circular No. 17/88, dated 1-6-88, relying upon earlier circular dated 22-12-86 clarified that the guniting of duty paid steel pipes would not amount to manufacture under the Central Excise law. (ii) Tribunal in following decisions have held that cement coating of pipes does not amount to manufacture : (a) CCE v. Fact Engineering Works - 1988 (35) E.L.T. 480 (b) Indian Hume Pipe Co. Ltd. v. CCE - 1990 (45) E.L.T. 457 (c) Spunpipe and Construction Co. v. CCE - 1993 (66) E.L.T. 344. (iii) The decision of Tribunal in Indian Hume Pipe's case has been approved by Supreme Court in Tega India Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time of dispatches on the value specified in the contracts) (B) 23,16,110 Sub - total (C) = (A) + (B) 58,19,133 16,59,027 41,60,106 Clearances against contracts entered after 1-7-2000 November, 2000 to June, 2001 (D) 1,66,41,481 53,13,879 1,13,27,602 Total (E) = (C) + (D) 2,24,60,614 69,72,906 1,54,87,708 2.8 The appellants accept that refund of Rs. 1,13,27,602 is hit by unjust enrichment. The dispatches of coated pipes made during the period November, 2000 to June, 2001 were in respect of contracts entered after 1-7-2000 on various dates thereafter provided for duty on coating value also. 3.1 They submit that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entered prior to 1-7-2000, there is direct and clinching evidence that the price was excluding excise duty on coating value and therefore when excise duty is being paid on the coating value, it can only mean that excise duty has been borne by the appellants. They rely upon judgment of Tribunal in the case of AL Steel Industries v. CCE - 2003 (161) E.L.T. 628 (T) = 2003 (57) RLT 667 (T). In that case, the price approved by the customer namely Kerala State Electricity Board was exclusive of excise duty. The Tribunal held that since the approved price did not provide for excise duty, bar of unjust enrichment is not attracted. They also rely upon the judgment of Tribunal in Panihati Rubber Ltd. v. CCE - 2001 (127) E.L.T. 742 (T). In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Steel Industries v. CCE - 2003 (161) E.L.T. 628 (T) = 2003 (57) RLT 667 (T) where the contract did not make provision for excise duty and hence refund was held to be not hit by unjust enrichment. We relay on these decisions in this case and find no unjust enrichment due to the terms as used in these contracts. 3.4 An additional ground for sustaining the refund of duty paid retrospectively on 5-9-2000 for July, 2000 and August 2000, is that duty paid retrospectively, is not hit by bar of unjust enrichment. Since the contracts for these dispatch were entered prior to 1-7-2000. The appellants have not separately charged and collected from their customers, any amount towards any amount paid as duty retrospectively. In following decisions, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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