TaxTMI 
TaxTMI 
TaxTMI 
2006 (9) TMI 1
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....for refund of Rs. 6.30 lakhs, which had already been paid by way of excise duty. The said applications were rejected by the authorities under the Act (Central Excise and Salt Act, 1944) opining that the same would amount to unjust enrichment. The respondent preferred an appeal before the Customs, Excise & Gold (Control) Appellate Tribunal, which was registered as Appeal No. E/R.79/98. The question, which arose before the Tribunal, was: "As to whether the goods supplied to the railway administration included the element of excise duty?" The Tribunal for determining the issue went through the correspondences exchanged by and between the contracting parties, as also the certificate issued by the railway administration and held: "I have perused the records and considered the rival submissions. According to the contract, the prices were inclusive of excise duty. The subsequent letter from the railways indicated that no amount was provided towards excise duty while pricing was worked out. One letter specifically stated "E.D.-Nil". This would suggest that the price fixed under the contract did not provide for an element towards the Central Excise duty." 3. While arriving at the said fin....
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.... and there being a subsequent finding that no excise duty was payable in respect of the goods, the respondent company was entitled to refund and there was no question of unjust enrichment in the instant case." 6. Mr. Harish Chander, learned Senior Counsel appearing on behalf of the appellant submitted that - (i) The Tribunal and consequently, the High Court committed an error in passing the impugned judgment in so far as they failed to take into consideration that the question, 'As to whether the price included excise duty or not?', was a comprehensible one, having regard to the terms of the contract. (ii) Subsequent correspondence by and between the respondent and the railway administration were wholly irrelevant. 7. Mr. K.V. Vishwanathan, learned counsel appearing on behalf of the respondent, on the other hand, contended - (i) The findings of the Tribunal being findings of fact, this Court should not interfere therewith. (ii) The question as to whether the assessee has passed on the element of excise duty to its customers, being essentially question of fact, this Court may not exercise its jurisdiction under Article 136 of the Constitution of India. 8. It is now well settl....
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....te that clarifications were obtained by the respondent from the Railway Administration specifically in this behalf. The railway administration by its letter stated: "Assistant Controller Controller of Stores Central Excise Department N. Rly. Khardah Division Baroda House 4 Barabourne Road New Delhi. Calcutta-700 001 Sub: This Office Purchase ....
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....ull quantity of 7,000 Nos. of Vaccum Hose Pipe VB. 504/M at Rs. 48.90 each (inclusive of Excise Duty) plus CST 4%. It is confirmed that the firm has supplied the materials at the ordered rate and payment has been arranged at contracted rate which was always payable irrespective of the Central Excise Duty rate being NIL or otherwise. No separate payment has been arranged for actual CED." 13. In a letter dated 18-7-1995, the Eastern Railway Administration furthermore contended as under: "To &....
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....respondent mentioned the assessable value and duty in accordance with the provisions of Section 4(4)(d)(ii) by breaking up the contract price although the same did not include any amount on account of excise duty. In the in voices raised on the Railways, the respondent mentioned the contract-price without any break-up. In this connection, specimen copies of excise gate- passes in form GP. 1 and corresponding invoices raised on the Railways are annexed hereto and collectively marked "D"." 17. It is well settled that the findings of fact arrived at by the Tribunal should ordinarily be accepted by this Court. It is not the case of the appellant that while arriving at its finding that the respondent had not passed the amount of excise duty, the Tribunal had not considered all relevant facts. The contention of the appellant herein that the railway administration colluded with the respondent herein in issuing the aforementioned letters and certain certificate is, in our considered opinion, wholly misconceived. We have no hesitation to reject the same. 18. Our attention has been drawn to a decision of this Court in Commissioner of Central Excise, Mumbai-II v. Allied Photographics India ....