TaxTMI 
TaxTMI 
2005 (6) TMI 173
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....ntral Excise Act, 1944 introduced the concept of 'transaction value' w.e.f. 1-7-2000. With the introduction of 'transaction value', the appellants on a belief that coating value is also includible in the transaction value of bare pipes, on 5-9-2000, paid Excise Duty on coating value on the clearance effected during the period 1-7-2000 to 31-8-2000 as also in respect of bare pipes lying in stock as on 31-8-2000. This amount worked out to Rs. 35,03,023/-. 2.2 Vide Circular dated 3-1-2001, Central Board of Excise and Customs clarified that the condition of the goods when they are cleared from the factory is relevant for the purpose of paying excise duty, as also where such an activity carried out in separate factory does not amount to manuf....
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....oating value by virtue of definition of 'transaction value'. In any case, the above contention of the Assistant Commissioner is to be determined in light of - (i) CBEC vide Circular No. 17/88, dated 1-6-88, relying upon earlier circular dated 22-12-86 clarified that the guniting of duty paid steel pipes would not amount to manufacture under the Central Excise law. (ii) Tribunal in following decisions have held that cement coating of pipes does not amount to manufacture : (a) CCE v. Fact Engineering Works - 1988 (35) E.L.T. 480 (b) Indian Hume Pipe Co. Ltd. v....
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.... on coating (Rs.) (Rs.) (Rs.) (1) (2) (3) (4) (5) =(3) - (4) Clearances against contracts entered prior to 1-7-2000 July, 2000 & August, 2000 (Duty paid retrospectively on 5-9-2000 - as stated in para 2.2 supra - on the value specified in the Contracts) (A) 35,03,023 September 2000 & October 2000 (Duty paid at the time of dispatches on the value specified in the contracts) (B) 23,16,110 Sub - total (C) = (A) + (B) 58,19,133 16,59,027 41,60,106 Clearances against contracts entered after 1-7-2000 November, 2000 to June, 2001 (D) 1,66,41,481 53,13,879 1,13,27,602 Total (E) = (C)....
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....been paid by the appellants out of their own pocket and not collected from their customers and would not be thus hit by bar of unjust enrichment. 3.2 The impugned Order-in-Appeal, holds that price has remained same and therefore refund is hit by unjust enrichment. The appellants submit that the above is not correct. The appellants contended that in respect of contracts entered prior to 1-7-2000, there is direct and clinching evidence that the price was excluding excise duty on coating value and therefore when excise duty is being paid on the coating value, it can only mean that excise duty has been borne by the appellants. They rely upon judgment of Tribunal in the case of AL Steel Industries v. CCE - 2003 (161) E.L.T. 628 (T) = 2003 (57....
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.... in a contract/work order only with a view to avoid any possibility of supplier raising any demand at a later stage on the ground that certain duties are to be payable. The Tribunal rejected the contention that rates are "inclusive of taxes" would lead to presumption that excise duty was covered or provided for the appellants also rely upon the decision of Tribunal in AL Steel Industries v. CCE - 2003 (161) E.L.T. 628 (T) = 2003 (57) RLT 667 (T) where the contract did not make provision for excise duty and hence refund was held to be not hit by unjust enrichment. We relay on these decisions in this case and find no unjust enrichment due to the terms as used in these contracts. 3.4 An additional ground for sustaining the refund of duty pa....