2007 (10) TMI 115

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....raman, Member (T)] - Revenue has filed an appeal against the Order-in-Appeal No. 16/2005 (H-III) dated 21-1-2005 passed by the Commissioner of Customs Central Excise (Appeals), Hyderabad. 2. The respondents are manufacturers of sponge iron lumps which are excisable. They had paid Central Excise duty under protest on the sale of coal fine char and coal dust, which arise during the manufacture on....

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.... was not paid by the buyer, the bar of unjust enrichment is not applicable. The other case relied on by him is CCE, Calcutta-III v. Panihati Rubbers Ltd. reported in 2004 (172) E.L.T. 310 (Cal.). Following the ratio of the above decisions, the Commissioner (A) held that there is no unjust enrichment and therefore, the respondents are entitled for refund. Revenue has flied an appeal against the imp....

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....xed. In such cases, if it is held that the duty is not payable then we cannot say that the price includes Excise duty. From the records and also from the submissions of the respondent, it is seen that right from the beginning, the respondent agitated the payment of duty on the impugned goods. When they sold the impugned goods to the buyer, the buyer did not agree for payment of Excise duty on the ....

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....he respondent only has borne the incidence of duty When the duty is not payable and when the same has not been passed on to the buyer, the respondent is entitled for the refund and there is no unjust enrichment. In these circumstances, we hold that the order of the Commissioner (A) is correct. Moreover, in the following decisions, this Bench has held that when the contract is inclusive of duty, th....