2010 (1) TMI 1023

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.... price of Rs. 425/- per instrument, inclusive of all taxes. This was the uniform price for the delivery in different states all over India. Since the respondent claimed that the price included 18% Central Excise duty, after abating the central excise duty from the price of Rs. 425/- per instrument, the duty was paid by them on the assessable value of Rs. 360.17 per instrument, which came to Rs. 64.83 per instrument. Subsequently, they filed a refund claim, claiming that the assessable value also included the element of transportation cost and insurance, which are also to be excluded as per the provisions of Section 4(2) of Central Excise Act and on this basis they preferred refund claim of Rs. 99,545/- for the period from 1-4-97 to 12-9-97.....

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....l dated 18-1-2007 dismissed the Department's appeal following the Tribunal's judgment in the case of Mcnally Bharat Engineering Co. Ltd. reported in 2000 (168) E.L.T. 249 wherein it was held that doctrine of unjust enrichment is not applicable, when the buyer pays a contract price only. It is against this order of the Commissioner (Appeals), that the present appeal has been filed by the Revenue. 2. Heard both the sides. 2.1 Shri S.N. Srivastava, ld. Departmental Representative, reiterated the ground of appeal in the Revenue's appeal and pleaded that in this case it is very clear that the respondent had paid duty on the higher value including freight and insurance and therefore, the burden of proving that its incidence was not passed t....