2006 (3) TMI 175

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....supply of 10 kms. quantity of particular core and size @ Rs. 4,67,298/- per km. Regarding excise duty, as per the terms of the contract, excise duty was to be paid extra was exclusive of the said price and following term was stipulated in this behalf :- "Prices are exclusive of excise duty and will be paid extra as applicable at the time of supply. The present rate is 10.5%." 2.Thereafter vide letter dated 5th June, 1986 aforesaid clause 19(c) was amended in the following terms :- "II AGAINST CLAUSE 19(c) Excise Duty For Existing entries. Read : The prices are exclusive of excise duty @ 25%. The same shall be paid extra against documentary evidence. This is subject to the condition that credit if any received by you under the....

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....tter dated 5th June, 1986 vide which the rate of extra duty was increased from 10.5% to 25% was withdrawn, the condition relating to refund of excise duty on the basis of benefit claimed under the Modvat scheme was also withdrawn and, therefore, the Arbitrator could not have taken into consideration the said Modvat scheme for allowing the claim of the petitioner. This contention is misconceived for two reasons:- (i)         If one has to go strictly by the terms of the contract and once it is stated that the letter dated 5th June, 1986 is withdrawn, then as per clause 19(c) the respondent was entitled to excise duty @ 10%. However, the excise duty paid even after withdrawal of the letter dated 5th ....

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..... 3.         Information has been withheld by the respondents, hence adverse inference will be taken against them that they have availed Modvat benefits and not accounted for that. Modvat is a procedure for computing E.D. payable, which has been accepted by the respondents in 19(c) and letter dated 5-6-86. 4.         Respondents have not proved the actual date of purchasing raw material for manufacturing of subject A/T stores. Mere assertion in counter is not enough. 5.         Respondents have filed E.D. G.P. but in absence of benefits availed by them of Modvat it is useless. Both parties are still free to deduct....