TaxTMI 
TaxTMI 
2013 (7) TMI 278
X X X X Extracts X X X X
X X X X Extracts X X X X
....olding that the amount of Rs.621/- does not include the excise duty when the purchase order and the relevant Central Excise Invoices indicate that the price of Rs.621/- is inclusive of excise duty ? 2. Whether the appellate Tribunal has failed to take into consideration that the excise duty was passed on to the buyer and hence the respondent is not entitled for unjust enrichment and for refund of excise duty ?" 2. Inspite of service of notice on the assessee, there is no representation either in person or through counsel. After hearing the learned Standing Counsel for the Revenue and on going through the records, the present order is passed. 3. The assessee herein is a SSI unit, manufacturing Small Arms Components falling under Cha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bligation to supply the goods not later than 31.12.2000 ; on account of certain difficulties, they could not comply with the same, they sought for extension, which was granted upto 31.01.2001 ; a further extension was granted upto 31.08.2001 and the purchaser made it clear that no increase be allowed on the price on account of statutory increase or on fresh imposition of duties. Thus, the request of the assessee to include 33% excise duty was rejected by the Ordnance Factory. It is stated that the assessee supplied goods on 03.10.2001 without knowing that the exemption already withdrawn was restored with effect from 01.10.2001. In the context of this, the assessee submitted that there being no liability, the payment received at Rs.621/- per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the duty at the rate of 33% which was paid by the assessee. In the circumstances, the CESTAT held that the assessee was entitled to refund. Aggrieved by this, the present appeal by the Revenue. 8. Learned Standing counsel appearing for the Revenue strenuously argued that considering the fact that the assessee had charged the price as inclusive of duty would show that irrespective of the duty exemption, the assessee had intended charging of duty ; thus, on facts, the CESTAT committed serious error in granting relief to the assessee. He pointed out that when the assessee did not dispute the fact that the price was inclusive of duty, the one and only inference that could be drawn is that duty element had been collected from the buyer ; he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ise only if and when there is a liability and not otherwise. On the admitted facts, for the period prior to 01.03.2001, there could be no valid claim for refund. 13. As far as the present case is concerned, for the period covering the purchase order dated 27.10.2000, the price Rs.621/- per piece is inclusive of excise duty, thus, there being no liability, there could be no passing of a liability to the customer. Thus it is difficult to hold that there was passed-on liability on the price of Rs.621/-. As far as the three invoices dated 03.10.2001 is concerned, being covered by the re-introduction of the exemption, the question of passing on of the liability hence has to be seen. The Adjudicating Authority pointed out that the assessee had....