2019 (2) TMI 1869

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....ssed by the Assistant Commissioner, Central Excise-1, Faridabad as the adjudicating authority. 2. Briefly stated the facts of the case are that the appellant is engaged in the manufacture of Railway Track Maintenance Machines (RTMM) falling under heading 8604 of the Central Excise Tariff Act, 1985. These machines are being manufactured and exclusively cleared to the Indian Railway in terms of contract entered by the appellant with Indian Railway. The appellant are subsidiary of Plasser and Theurer Group of Austria (for short Plasser) to whom the contract by the Indian Railway for procurement of RTMM). In terms of contract, the imported components were to be supplied by Plasser Austria and the indigenous components were to be manufactured....

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....n the instant case, the RTMM were supplied by the appellant to Indian Railway as per contract during the year 2004 and 2005, when the product RTMM was not leviable to central excise duty in terms of exemptions, which was withdrawn w.e.f. 01.03.2006. As the RTMM became dutiable, appellant is entitled for the Cenvat Credit of the duty paid on the imported/indigenous inputs and therefore the Indian Railway amended the contracts entered with the Plasser Austria, vide amendment memo dated 10.05.2006 and 05.05.2006, and the Clause No. 11 & 12 were added to main contract to provide that the excise duty legally leviable and payable by the appellant was liable to be reimbursed by the Indian Railway and the appellant was to pass the benefit of Cenvat....

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.... Commissioner vs. Surya Conductors P. Ltd., - 2005 (180) ELT A95 (SC)] 4.2 Further, the observations of the Commissioner (Appeal) in the impugned order that the duty burden has been passed on to the buyer, the Indian Railway is not legally tenable on the ground that the railway has issued a certificate stating that it will not reimburse excess duty paid by the appellant on RTMMs supplied to them. Hence, it is evident that the input of duty has not been passed on by the appellant to Indian Railway. Also, the Chartered Accountant has duly certified vide certificate dated 14.07.2007 that the instant duty has been passed on by the appellant to any another person. 4.3 Ld. Advocate also submitted that the appellant has successfully rebutted....