{"id":131598,"date":"2006-09-08T00:00:00","date_gmt":"2006-09-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-vs-ms-panihati-rubber-ltd-on-8-september-2006"},"modified":"2018-06-28T00:49:10","modified_gmt":"2018-06-27T19:19:10","slug":"commnr-of-central-excise-vs-ms-panihati-rubber-ltd-on-8-september-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/commnr-of-central-excise-vs-ms-panihati-rubber-ltd-on-8-september-2006","title":{"rendered":"Commnr. Of Central Excise, … vs M\/S. Panihati Rubber Ltd on 8 September, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Commnr. Of Central Excise, … vs M\/S. Panihati Rubber Ltd on 8 September, 2006<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, Dalveer Bhandari<\/div>\n
           CASE NO.:\nAppeal (civil)  3980 of 2006\n\nPETITIONER:\nCommnr. Of Central Excise, Calcutta\n\nRESPONDENT:\nM\/s. Panihati Rubber Ltd\n\nDATE OF JUDGMENT: 08\/09\/2006\n\nBENCH:\nS.B. Sinha & Dalveer Bhandari\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\n(Arising out of SLP(C)No.17735\/2004)<\/p>\n
S.B. Sinha, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
The respondent, which is a Company incorporated and registered
\nunder the Indian Companies Act, manufactures ‘Hose Pipe’.  It supplies
\ngoods manufactured by it to the Indian Railways.  The goods are
\nmanufactured in terms of the specifications of the railway administration.
\nSupplies are, however, made against specific contracts.  The respondents
\nused to pay 30% basic excise duty and 15% special duty.  The goods came
\nto be classified under Sub-Heading 4009.92.  The said classification was in
\ndispute.  The contention of the manufacturers was that it is classifiable under
\nSub-Heading 4009.99.  The lis ended in favour of the respondent.  It,
\nhowever, obtained clearance of the goods on payment of duties under protest
\nas the products had been classified under classification 4009.92.  The
\nrespondent filed two applications for refund of Rs.6.30 lakhs, which had
\nalready been paid by way of excise duty.  The said applications were
\nrejected by the authorities under the Act (Central Excise and Salt Act, 1944)
\nopining that the same would amount to unjust enrichment.  The respondent
\npreferred an appeal before the Customs, Excise & Gold (Control) Appellate
\nTribunal, which was registered as Appeal No.E\/R-79\/98.  The question,
\nwhich arose before the Tribunal, was : “As to whether the goods supplied to
\nthe railway administration included the element of excise duty?”  The
\nTribunal for determining the issue went through the correspondences
\nexchanged by and between the contracting parties, as also the certificate
\nissued by the railway administration and held :
\n\t“I have perused the records and considered the
\nrival submissions.  According to the contract, the prices
\nwere inclusive of excise duty.  The subsequent letter
\nfrom the railways indicated that no amount was provided
\ntowards excise duty while pricing was worked out.  One
\nletter specifically stated “E.D.-Nil”.  This would suggest
\nthat the price fixed under the contract did not provide for
\nan element towards the Central Excise duty.”\n<\/p>\n
While arriving at the said finding, the Tribunal relied upon its own
\njudgment in Cimmco Ltd. Vs. Collector of Central Excise, Jaipur [1999
\n(107) ELT 246 (Tribunal)], wherein it was held :\n<\/p>\n
“We have given careful consideration to the rival
\nsubmissions.  The clue to the problem in this case lies in
\na proper understanding of the provisions in the work
\norder particularly with reference to the rates.  There is an
\napparent conflict in what is stated in different parts of the
\nschedule of rates.  Thus, as against a note that the rates
\nare inclusive of all duties, taxes and to and fro handling
\ncharges in one place there is another remark regarding
\nthe rates under the caption condition of contract which is
\nmore elaborate than the earlier referred to sentence.  This
\nreads as follows :\n<\/p>\n
(1) \tRates<\/p>\n
The rates are inclusive of all materials, labour,
\nequipment, lifts, leads, Sales tax, octroi required in
\nconnection with completion of work to the entire
\nsatisfaction of the Corporation.  All the materials are to
\nbe supplied by the Contractor unless otherwise stated.\n<\/p>\n
(2)\tRates shall be valid till the entire work is
\n100% complete, and no escalation will be considered at
\nany stage.”\n<\/p>\n
An application for reference was filed by the appellant herein before
\nthe Calcutta High Court.  The Tribunal was directed to refer to the High
\nCourt the following questions:\n<\/p>\n
“(i)\tWhether or not the bar of unjust enrichment will
\nbe attracted in a case where duty has been passed on to
\nthe buyer of goods not separately as duty but by inclusion
\nin the price as one component of the same?\n<\/p>\n
(ii)\tWhether the Learned Tribunal was justified in
\nholding that the bar of unjust enrichment would not be
\nattracted when the price is inclusive of duties and taxes
\nfollowing the case of CIMMCO Ltd. Reported in 1999
\n(107) ELT 246 (Tribunal)?\n<\/p>\n
(iii)\tWhether the Hon’ble Tribunal was justified in
\npassing the order ignoring the principles of law laid down
\nin the case of Mafatlal Industries reported in 1997 (89)
\nELT 247 (SC) and the findings of the department
\nindicated in the order in original?”\n<\/p>\n
The High Court, by its impugned judgment, affirmed the findings of
\nthe Tribunal, holding :\n<\/p>\n
“Having regard to the definite view expressed by
\nthe learned Tribunal that the bar of unjust enrichment
\nwas not attracted in the instant case the questions as
\nframed in our view do not require any answer since we
\nagree that having paid the excise duty under protest and
\nthere being a subsequent finding that no excise duty was
\npayable in respect of the goods, the respondent company
\nwas entitled to refund and there was no question of unjust
\nenrichment in the instant case.”\n<\/p>\n
Mr. Harish Chander, learned Senior Counsel appearing on behalf of
\nthe appellant submitted that <\/p>\n
(i)\tThe Tribunal and consequently, the High Court committed an
\nerror in passing the impugned judgment in so far as they failed to take into
\nconsideration that the question, ‘As to whether the price included excise
\nduty or not?’, was a comprehensible one, having regard to the terms of the
\ncontract.\n<\/p>\n
(ii)\tSubsequent correspondence by and between the respondent and
\nthe railway administration were wholly irrelevant.\n<\/p>\n
Mr. K.V. Vishwanathan, learned counsel appearing on behalf of the
\nrespondent, on the other hand, contended<\/p>\n
i)\tThe findings of the Tribunal being findings of fact, this Court
\nshould not interfere therewith.\n<\/p>\n
 ii)\tThe question as to whether the assessee has passed on the
\nelement of excise duty to its customers, being essentially question of fact,
\nthis Court may not exercise its jurisdiction under Article 136 of the
\nConstitution of India.\n<\/p>\n
It is now well settled that despite levy of excise duty in a given
\nsituation being held to be illegal, in the event it is found that the assessee in
\nfact passed on the burden of excise duty to its customers, applying the
\nprinciple of unjust enrichment, the Court would not ordinarily direct refund
\nthereof.\n<\/p>\n
The question whether the excise duty had been passed on to the
\nconsumer, however, is essentially a question of fact.  It is not in dispute that
\nprior to 1993 goods were being classified under the Sub-Heading 4009.92 of
\nthe Schedule appended to the Central Excise Tariff Act, 1985 attracting
\n@30% advalorem as basic excise duty and 15% as special basic duty.  It is
\nfurthermore not in dispute that the Bombay High Court in the case of M\/s.
\nRubber Products Ltd. vs. Union of India,<\/a> reported in 1992 (43) ECR 520
\nheld :\n<\/p>\n
“The duty was recovered from the Company on
\nthe basis that the product manufactured attracts sub-
\nheading 4009.92 of the Tariff and that was the basis of
\norder passed by the Assistant Collector.  The order of
\nthe Assistant Collector was set aside by the Appellate
\nCollector and it was ordered that the duty is payable
\nunder sub-heading 4009.99 of the Tariff.  The order of
\nthe Appellate Collector has acquired finality and,
\ntherefore, excess duty recovered by the Department is
\nliable to be refunded.”\n<\/p>\n
In this case also, the respondent had, in view of the decision rendered
\nby the excise authorities as affirmed by the High Court in M\/s. Rubber
\nProducts Ltd. (supra), filed a revised classification list.  It is only during the
\npendency of the said application it received four orders from the Railway
\nAdministration.  The prices fixed for the goods were as under :\n<\/p>\n
\"Order Date\t\t\t\tPrice per unit\n  16.02.1993\t\t\t\tRs. 48.90 p.\n  18.02.1993\t\t\t\tRs. 46.90 p.\n  06.04.1993\t\t\t\tRs. 47.90 p.\n  10.05.1993\t\t\t\tRs. 48.65 p.\"\n\n<\/pre>\n
The excise duty was specified as ‘Nil’ in the order dated 10th May,
\n1993.  So far as the order dated 6th April, 1993 is concerned, no excise duty
\nwas specified.  However, in the order dated 16th February, 1993 a stipulation
\nwas made by the Railway Administration that the price was inclusive of
\nduty, with a view to avoid the claim made by the respondent at a later stage
\non the ground that a duty had to be paid.  It is also not in dispute that
\nclarifications were obtained by the respondent from the Railway
\nAdministration specifically in this behalf.  The railway administration by its
\nletter stated :\n<\/p>\n
“Assistant Controller\t\t     Controller of Stores
\nCentral Excise Department\t\tN. Rly.\n<\/p>\n
Khardah Division\t\t\t\tBonda House\n\t4,Barabourne Road\t\t\tNew Delhi.\n\tCalcutta-700 001\n<\/pre>\n
\tSub : This Office Purchase order of 07938759101595
\n\t\tDt. 10.5.93 for the supply of Hose Pipe VB-504\/
\n\t\tM Fix 10,000.\n<\/p>\n
Ref :\tFirm Letter No.BPE\/Sales\/M2 (19-D-11-7-01).\n<\/p>\n
\tThis Office Purchase order 07923259101595 dated
\n10-5-93 for the supply of Hose Pipe VB-504\/M @Rs.
\n48.65 each and 4\/CST  E.DC Nil Spare copy of the
\nsame enclosed for your ready reference :-\n<\/p>\n
\t\t\t\t\t\tSd\/- Illegible
\n\t\t\t\t\tFor Controller of Stores”\n<\/p>\n
A certificate was also issued by the Railway Administration on
\n26.9.1994 stating :\n<\/p>\n
\t“This is to certify that M\/s. BAJORIA RUBBER
\nINDUSTRIES LIMITED, CALCUTTA had supplied the
\nfull quantity of 7,000 Nos. of Vaccum Hose Pipe VB-
\n504\/M at Rs.48.90 each (inclusive of Excise Duty) plus
\nCST 4%.  It is confirmed that the firm has supplied the
\nmaterials at the ordered rate and payment has been
\narranged at contracted rate which was always payable
\nirrespective of the Central Excise Duty rate being NIL or
\notherwise.  No separate payment has been arranged for
\nactual CED.”\n<\/p>\n
In a letter dated 18.7.1995, the Eastern Railway Administration
\nfurthermore contended as under :\n<\/p>\n
\"To\t\t\t\t\t\tDated 18.7.95. \n\nThe Assistant Collector\nCentral Excise\nKhardah Division,\n4, Braboune Road,\nCalcutta-700001.\n\nDear Sir,\n\nSub: \tPurchase from M\/s. Bajoria Rubber      \n<\/pre>\n
Industries Ltd. 27, Bentinck Street Calcutta-1.\n<\/p>\n
Ref: \tLetter No. i) Case No.V(18)KDH\/BRU\/94\/
\n                                  2600 dt. 21.6.95.\n<\/p>\n
ii) Case No.V(18) 1KDH\/BRU\/
\n94\/57 dt.4.1.95.\n<\/p>\n
In case of Purchase order No.11\/98\/23\/4\/1\/81288
\ndated    .4.93, the rate was Rs.47.90 each and WBST @
\n4.6% extra, Ex. duty not mentioned in the said P\/O
\npayment was made to the diem as purchasers of the P\/O.\n<\/p>\n
In case of P.O. No. 11\/93\/2313\/1\/78290 dated
\n18.2.93, the rate was Rs. 46.90 each inclusive of Excise
\nduty and WBST @ 4.6% extra.  Payment made
\naccordingly.”\n<\/p>\n
\tIf the price for supply of Hose Pipes in respect of the contract dated
\n10th May, 1993 being @ Rs. 48.65p. did not include the element of excise
\nduty, the same being ‘Nil’, the Tribunal may be correct in its opinion that the
\nquestion of excise duty having been passed by the respondent to the Railway
\nAdministration would not arise.  In respect of the other three orders, wherein
\nthe rates quoted was Rs.46.90p., Rs.47.90p. and Rs.48.65p. also the said
\nquestion would not arise as the rate included the element of excise duty.\n<\/p>\n
The respondents, in our opinion, rightly contended that as the Central
\nExcise Authorities were unwilling to accept the classification under the Sub-
\nHeading 4009.99 with ‘Nil’ rate of duty, they had no other option but to
\nclear the said goods upon payment of duty under protest, wherein they were
\nrequired to compute the value in terms of Section 4(4)(d) of the Central
\nExcise Act, 1944.\n<\/p>\n
The respondent, in his counter affidavit, categorically stated :\n<\/p>\n
“…..According to the said provision, the value on which
\nduty was payable did not include the amount of excise
\nduty payable.  Accordingly, though the contract price did
\nnot include any amount on account of duty, the
\nrespondent had to deduct from the contract price the
\namount of duty it was required by the Central Excise
\nAuthorities to pay under sub-heading No. 4009.92 in
\norder to arrive at the value and the amount paid under
\nprotest was worked out accordingly.  In the Central
\nExcise gate-passes in form No. GP-1 and the Central
\nExcise price-lists filed under rule 173C of the Central
\nExcise Rules, 1944 (hereinafter referred to as “the
\nRules”), the respondent mentioned the assessable value
\nand duty in accordance with the provisions of Section
\n4(4)(d)(ii) by breaking up the contract price although the
\nsame did not include any amount on account of excise
\nduty.  In the invoices raised on the Railways, the
\nrespondent mentioned the contract-price without any
\nbreak-up.  In this connection, specimen copies of excise
\ngate-passes in form GP-1 and corresponding invoices
\nraised on the Railways are annexed hereto and
\ncollectively marked “D”.”\n<\/p>\n
It is well settled that the findings of fact arrived at by the Tribunal
\nshould ordinarily be accepted by this Court.  It is not the case of the
\nappellant that while arriving at its finding that the respondent had not passed
\nthe amount of excise duty, the Tribunal had not considered all relevant facts.
\nThe contention of the appellant herein that the railway administration
\ncolluded with the respondent herein in issuing the aforementioned letters and
\ncertain certificate is, in our considered opinion, wholly misconceived.  We
\nhave no hesitation to reject the same.\n<\/p>\n
Our attention has been drawn to a decision of this Court in
\nCommissioner of Central Excise, Mumbai-II vs. Allied Photographics
\nIndia Ltd.<\/a> [(2004) 4 SCC 34], wherein this Court opined that the doctrine of
\nunjust enrichment would be attracted, although, the duty might have been
\npaid under protest.  In that case the manufacturer has passed on the burden
\nof duty to the distributor.  The question, therefore, which fell for
\nconsideration was : “Whether the distributor in turn passed on a duty burden
\nto its dealers?”  It was in the said factual matrix held :\n<\/p>\n
“.It is important to note that M\/s AGIL was the sole
\ndistributor of NIIL.  Therefore, it is highly improbable
\nfor a distributor to incur cost of purchase which included
\n20% element of duty in addition to the purchase price
\nwithout passing on the burden to its dealers. From the
\nrecord it appears that during the disputed period 1974 to
\n1984, M\/s AGIL was in trading which further supports
\nthe above improbability. In the present case, there is no
\nmaterial placed on record by M\/s AGIL as to how it had
\naccounted for the cost of purchase in its books and the
\naccounting treatment it gave to the said item at the time
\nof payment of the purchase price. No record as to costing
\nof that item has been produced. This material was
\nrelevant as in the present case NIIL conceded that it had
\npassed on the burden of duty to its distributor M\/s AGIL
\n(buyer) and it was the buyer who claimed refund. It has
\nbeen urged on behalf of the respondent and which
\nargument has been accepted by the authorities below that
\n20% of the total price paid by M\/s AGIL to NIIL
\nrepresented total excess excise duty levied and not the
\nexcess duty collected by NIIL in the form of sale price
\nfrom its distributor M\/s NIIL. It was argued that excess
\nduty collected by NIIL represented only 1.62% of the
\ntotal price. It was argued that resale price charged by M\/s
\nAGIL to its dealers had no relevance to excess excise
\nduty paid by M\/s AGIL to NIIL at the time of purchase
\nas the sale price charged by M\/s AGIL to its dealers was
\nbased on the prevailing market price. We do not find any
\nmerit in this argument. In the present case, the refund
\nclaim is made by a buyer and not by the manufacturer.
\nThe buyer says that he has not passed on the burden to its
\ndealers. The buyer has bought the goods from the
\nmanufacturer paying the purchase price which included
\ncost of purchase plus taxes and duties on the date of
\npurchase. In such cases, cost of purchase to the buyer is a
\nrelevant factor. None of the authorities below have
\nlooked into this aspect. Even the Appellate Tribunal has
\nnot gone into this relevant factor. It has merely quoted
\nthe passages from the order of the lower authority, whose
\norder was impugned before it. Costing of the goods in the
\nhands of the distributor, the cost element and the
\ntreatment given to purchases by the buyer in his own
\naccount were relevant circumstances which the
\nauthorities below failed to examine. It was submitted that
\ncost of purchase was not a relevant factor. It was
\nsubmitted on behalf of the respondent that the resale
\nprice charged by the buyer was not a relevant factor. It
\nwas submitted that since the sale price of the goods
\nbefore and after the assessment remained the same, the
\nburden of excess duty was absorbed by the respondent. It
\nwas submitted that in any event the sale price of the
\ngoods increased much less than the amount of duty
\n(differential) involved in this case and, therefore,
\nincidence of duty was not passed on to the consumers.”
\nThe said decision, therefore, was rendered on its own facts.  We,
\nhowever, as noticed hereinbefore, are not in a position to agree with the
\ncontention of the appellant that the finding of fact arrived at by the tribunal
\nis based on no material.\n<\/p>\n
There is, thus, no merit in this appeal.  It is accordingly dismissed.
\nThe appellant is directed to comply with the Tribunal’s order within four
\nweeks from today.  The appellant shall bear the costs of the respondent
\nwhich is assessed at Rs.10,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Commnr. Of Central Excise, … vs M\/S. Panihati Rubber Ltd on 8 September, 2006 Author: S Sinha Bench: S.B. Sinha, Dalveer Bhandari CASE NO.: Appeal (civil) 3980 of 2006 PETITIONER: Commnr. Of Central Excise, Calcutta RESPONDENT: M\/s. Panihati Rubber Ltd DATE OF JUDGMENT: 08\/09\/2006 BENCH: S.B. Sinha & Dalveer Bhandari JUDGMENT: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-131598","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nCommnr. Of Central Excise, ... vs M\/S. 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