TaxTMI 
TaxTMI 
2017 (8) TMI 105
X X X X Extracts X X X X
X X X X Extracts X X X X
....ibunal (CESTAT) dated 06.05.2013 by which four appeals of the same assessee were allowed and the respondent assessee was allowed refund of excise duty which was deposited by it under protest pending the consideration of the validity of the adjudicating order. In all appeals a common substantial question of law as under is proposed to be raised:- Whether the CESTAT is justified in allowing the appeals of the respondent assessee and in permitting refund of excise duty to it under Section 11B of the Act even though the presumption of Section 12B of the Act was not successfully dislodged by the respondent assessee? The brief facts giving rise to the present appeals are that that the respondent assessee is engaged in manufacture of phot....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rum. During the pendency of the above dispute the respondent assessee was forced to deposit the disputed amount of excise duty on reconditioned drums which was deposited by it but under protest. This dispute was finally settled by the CESTAT vide order dated 18.12.1996 in favour of the respondent assessee holding that the reconditioning or the installation of the photo-copier drums does not amount to manufacturing so as to attract any excise duty on it. The respondent assessee on the attainment of finality of the above order, applied for refund of excise duty deposited by it under protest in accordance with the provisions of Section 11B of the Act. The claims for refund were rejected by the adjudicating authority as well as the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....not a sale which may result in realisation of any additional excise duty. Thus, the respondent assessee could not have realised any duty from the customers. Therefore, the excise duty paid under protest by the respondent assessee is from its own source. Accordingly, if the duty is refunded there would be no unjust enrichment. In response to the above submission, Sri Agarwal in the rejoinder submitted that the amount of service contract ie. Re.0.29/- per copy collected by the respondent assessee is the consideration for the sale of reconditioned photo-copier drum which includes the duty of excise. The Tribunal in context with the above argument on consideration of the terms and conditions of the FSMA held that under the agreement the r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asmuch as sufficiency or insufficiency of the evidence and the findings of fact are not the matters which can be dealt with in such appeals. In view of the finding of the Tribunal that the incidence of excise duty on the replaced photo-copier drums has not been passed on to the customers, the question of unjust enrichment does not arise to deny the refund to the respondent assessee and in these circumstances no question of law arises for determination by us. Thus, we do not consider it appropriate to interfere with the finding of fact and with the order of refund passed by the Tribunal after setting aside the orders of the authorities below. Nonetheless, as Sri Agarwal has vehemently argued that the amount received under the FSMA d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he customer a fresh buyer. It may be pertinent to point out herein that a combined reading of Sections 12A and 12B of the Act would reveal that the presumption under Section 12B would arise only if there is sale and there is a buyer of any goods which is not the position in the case at hand. Secondly, the price of the goods would include excise duty only when there is sale of the goods as contemplated under Section 12A of the Act. In the absence of sale the excise duty cannot be said to be the part of the contract money. In view of the above as there is apparently no buyer of reconditioned drum under the FSMA, there is no sale of any component or the photo-copier drum which may indicate that the amount so realised covers the excise du....
X X X X Extracts X X X X
X X X X Extracts X X X X
....esaid authority has no application not even the decision of the Supreme Court relied upon therein. In Xerox Modicorp Ltd. Vs. State of Karnataka (2005) 7 SCC 380 the Apex Court held that the property passes the moment it is put in the machine and the transfer takes place, as such there is sale of parts in FSMA also. However, the aforesaid decision may not apply to the facts of the present case as therein under a similar agreement of FSMA new components were put in the machine. In the case at hand, it is an admitted case that no new component was installed except the reconditioned drums which was the part of the already sold machine which were taken out, serviced or repaired and then put in again resulting in no sale at all. The oth....