ALSTOM LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) In this appeal filed by the appellants against the impugned order -in -appeal, the issue relates to the applicability of the doctrine of unjust enrichment, to the refund claim of the appellants. The adjudicating authority allowed the refund claim by holding that the same was not hit by the bar of unjust enrichment as the incidence of duty had not been passed on by the appellants to their buyers M/s. TISCO. The Commissioner (Appeals) has reversed that order by following the Larger Bench decision in Grasim Industries Ltd. (Chemical Division) v. CCE, Bhopal - 2003 (153) E.L.T. 694.

(2.) I have heard both the sides and gone through the record. From the perusal of the record and facts and material placed by the appellants on the record, it is evident that the appellants supplied the transformers to M/s. TISCO under a purchase order which contained price variation clause, they calculated the price of the transformers by taking into account price escalation clause and issued the invoices accordingly at the time of clearance of the goods for delivery to their above said buyer. But the buyer refused to make the payment on that price. Rather paid the original price as contained in the purchase order, as is quite evident from their letter dated 1 -12 -92 also. The appellants accordingly being left with no option, issued credit notes for correcting the entries in their books of account wherein they categorically also mentioned that these notes were being issued towards the withdrawal of their partial PVC claim against the invoices in question under the cover of which the goods were supplied. Therefore, under these circumstances, it is difficult to conclude that the incidence of duty had been passed on by the appellants to their buyer. Rather they themselves had borne the duty which the buyer refused to pay. The ratio of law laid down in Grasim Industries (supra) by the Larger Bench of the Tribunal is not attracted to the case of the appellants. In that case, the credit notes were issued to the buyers after the buyer had paid the duty, by the assessee and it was observed that the subsequent issuance of the credit notes will not enable the assessee to claim refund of duty which he had already passed on to the buyers. But such is not the situation in the case in hand. As observed above, the buyer had never paid the duty as entered in the invoices issued by the appellants while clearing the goods on payment of duty, the credit notes had been issued by the appellants for correction of their record and withdrawal of their claim against the buyer as latter refused to pay the price including the duty, as recorded in the invoices.

(3.) In the light of the discussion made above, the impugned order is set aside. The appeal of the appellants is accepted with consequential relief, if any, permissible under the law.