Minda Industries and anr. Vs. Cce

1. appellants are absent in spite of notice of hearing, but have sent a request for decision of the appeals on merits. we have heard shri m.ali, jdr and perused the papers.2. appellants, who were availing the benefit of invoice price procedure, did not collect the amount of duty in addition to the invoice price, but paid duty treating the invoice price as exclusive of duty element and subsequently filed refund claims on the ground that the invoice price was inclusive of duty, that excess duty had been paid and the same should be refunded. the assistant collector passed three separate orders rejecting the refund claims and these orders have been confirmed by the collector (appeals).3. certain price has been realised by the appellants under the invoices. the invoices did not indicate that over and above the prices shoivn therein, any amount had been recovered on account of duty. price lists were not being filed in view of the invoice price procedure which was being availed by the appellants. the department has no specific case nor evidence that element of duty was being recovered separately.in these circumstances, it must be treated that invoice price included the element of duty and it was cum-duty price and the duty element has to be deducted in order to arrive at the correct assessable value and the correct duty payable. in these circumstances, the impugned orders are set aside and the refund claims are remanded to the jurisdictional adjudicating authority for decision afresh, treating the invoice price as inclusive of duty and giving the appellants an opportunity of hearing. the appeals are allowed.