JUDGMENT Chitra Venkataraman, J. The Revenue is on appeal as against the order of the Customs, Excise and Service Tax Appellate Tribunal passed in No.298/2005 dated 02.03.2005 raising the following substantial questions of law :- "1. Whether the appellate Tribunal is correct in holding that the amount of Rs.621/-does not include the excise duty when the purchase order and the relevant Central Excise Invoices indicate that the price of Rs.621/- is inclusive of excise duty ? 2. Whether the appellate Tribunal has failed to take into consideration that the excise duty was passed on to the buyer and hence the respondent is not entitled for unjust enrichment and for refund of excise duty ?" 2. Inspite of service of notice on the assessee, there is no representation either in person or through counsel. After hearing the learned Standing Counsel for the Revenue and on going through the records, the present order is passed. 3. The assessee herein is a SSI unit, manufacturing Small Arms Components falling under Chapter Heading 93.05 of Central Excise Tariff Act, 1985. Evidently, the assessee obtained a supply order from Ordnance Factory, Trichy for the supply of Carrier Breech Block Assembly. The assessee quoted the price of Rs.621/- per piece inclusive of Excise Duty. It is seen from the facts that during Budget 2001, as the chapter 93.05 was taken out of SSI exemption purview, vide Notification No.8/2001 dated 01.03.2001, Carrier and Breech Block Assembly falling under Chapter 93.05 was brought into Excise Net. It is not disputed by the Revenue that the exemption withdrawn was restored vide Notification No.47/01 dated 01.10.2001 by incorporating the said chapter under the SSI Exemption. Considering the withdrawal of the exemption and the restoration, the Government held that clearance of goods falling under Chapter 93.05 of Act, 1985 and parts falling under heading No.93.06 or 93.07 before the 1st day of October 2001, would not come for refund of duty if the duty was included in the aggregate value of clearance. 4. The assessee filed a refund claim on 03.10.2001 on the duty paid for the clearance effected. The Assessing Officer viewed that the assessee had not enclosed documentary proof regarding the duty element not being passed over to the customers ; consequently, show cause notice was issued proposing to deny the refund claim. 4. The assessee filed a refund claim on 03.10.2001 on the duty paid for the clearance effected. The Assessing Officer viewed that the assessee had not enclosed documentary proof regarding the duty element not being passed over to the customers ; consequently, show cause notice was issued proposing to deny the refund claim. The assessee objected to the said view and pointed out that as per the agreement and purchase order of the Ordnance Factory, the assessee was under an obligation to supply the goods not later than 31.12.2000 ; on account of certain difficulties, they could not comply with the same, they sought for extension, which was granted upto 31.01.2001 ; a further extension was granted upto 31.08.2001 and the purchaser made it clear that no increase be allowed on the price on account of statutory increase or on fresh imposition of duties. Thus, the request of the assessee to include 33% excise duty was rejected by the Ordnance Factory. It is stated that the assessee supplied goods on 03.10.2001 without knowing that the exemption already withdrawn was restored with effect from 01.10.2001. In the context of this, the assessee submitted that there being no liability, the payment received at Rs.621/-per piece was without inclusion of any duty and that they had not passed on any liability to the purchaser. 5. The Assessing Officer, however held that the purchase order dated 27.10.2000 showed that the price of Rs.621/-per piece was inclusive of excise duty. The assessee had raised three invoices dated 03.10.2001, wherein, the basic duty was declared as Rs.470.46. Thus, the excise duty had been charged separately; in the circumstances, he rejected the refund claim. 6. Aggrieved by the same, the assessee went on appeal before the Commissioner of Central Excise (Appeals), who, confirmed the rejection order. Aggrieved by this, the assessee went on further appeal before the CESTAT. 7. On a perusal of the documents, the CESTAT held that even though the price charged stated that it was stated to be inclusive of excise duty, yet, there was no liability to pay excise duty when the exemption was there in force. The request of the assessee was that the Government of India restored the exemption with effect from 01.10.2001. The assessee had paid the excise duty treating Rs.621/- per piece as cum-duty, not knowing that the Government had once-again re-introduced the exemption provision. The request of the assessee was that the Government of India restored the exemption with effect from 01.10.2001. The assessee had paid the excise duty treating Rs.621/- per piece as cum-duty, not knowing that the Government had once-again re-introduced the exemption provision. In the circumstances, the question of assessee having any liability and thereby made an unjust enrichment did not arise. The Tribunal further pointed out that the buyer had specifically pointed out that they would not pay more than Rs.621/-. Thus this indicated that the said amount did not include the duty at the rate of 33% which was paid by the assessee. In the circumstances, the CESTAT held that the assessee was entitled to refund. Aggrieved by this, the present appeal by the Revenue. 8. Learned Standing counsel appearing for the Revenue strenuously argued that considering the fact that the assessee had charged the price as inclusive of duty would show that irrespective of the duty exemption, the assessee had intended charging of duty ; thus, on facts, the CESTAT committed serious error in granting relief to the assessee. He pointed out that when the assessee did not dispute the fact that the price was inclusive of duty, the one and only inference that could be drawn is that duty element had been collected from the buyer ; hence, the refund of duty could not be granted. 9. We heard the learned Standing counsel for the Revenue as well as gone through the records. 10. We do not think that the claim of the Revenue could be sustained straight away. We may point out herein that neither the assessee nor the Revenue had placed full facts even to appreciate the arguments of the Revenue herein. 11. The assessee is a SSI unit. It obtained a supply order from Ordnance Factory, Trichy for the supply of Carrier Breech Block Assembly, falling under Chapter 93.05. The assessee, an SSI Unit enjoyed the SSI exemption. This exemption was available atleast till the Budget 2001. When Budget 2001 took this entry out of Heading 93.05, vide Notification No.8/2001 dated 01.03.2001. It means that on and from 01.03.2001, there was no exemption. The assessee, an SSI Unit enjoyed the SSI exemption. This exemption was available atleast till the Budget 2001. When Budget 2001 took this entry out of Heading 93.05, vide Notification No.8/2001 dated 01.03.2001. It means that on and from 01.03.2001, there was no exemption. As the price charged by the assessee was inclusive of duty, it stands to reason that that the assessee had passed on the duty element to the purchaser and that any claim of refund necessarily had to fail, by reason of above said fact. 12. It is an admitted fact that the exemption revoked was once-again reintroduced on 01.10.2001. Thus, for the period prior to 01.03.2001 and from 01.10.2001, there being no liability to pay any duty, even if the price had stated as duty inclusive, as no liability could be passed on, the question of refund does not arise unless the same had been levied at the hands of the assessee on the sum charged. The question of refund, hence, would arise only if and when there is a liability and not otherwise. On the admitted facts, for the period prior to 01.03.2001, there could be no valid claim for refund. 13. As far as the present case is concerned, for the period covering the purchase order dated 27.10.2000, the price Rs.621/-per piece is inclusive of excise duty, thus, there being no liability, there could be no passing of a liability to the customer. Thus it is difficult to hold that there was passed-on liability on the price of Rs.621/-. As far as the three invoices dated 03.10.2001 is concerned, being covered by the re-introduction of the exemption, the question of passing on of the liability hence has to be seen. The Adjudicating Authority pointed out that the assessee had declared Rs.470.46 as a basic price and that excise duty element had been charged separately. The assessee had accepted this during the personal hearing that they had received full payment from Ordnance Factory at Rs.621/- per piece. If the assessee had charged Rs.470.46 apart from what has been charged as duty and paid it, the question of refund has to be considered based on the facts as to whether the assessee had passed on the liability to the purchaser. If the assessee had charged Rs.470.46 apart from what has been charged as duty and paid it, the question of refund has to be considered based on the facts as to whether the assessee had passed on the liability to the purchaser. If the amount had been paid by the assessee and not been passed on to the purchaser, then the question of rejection of refund does not arise. 14. In the circumstances, we hold that the facts being not clear in this case, the matter has to remanded back to the Assessing Officer for working out as to Whether the claim can be considered for the period after 01.10.2001. 15. In the circumstances, we direct the Assessing Authority concerned to look into this and pass orders in accordance with law on the claim of the assessee herein. Consequently the Civil Miscellaneous Appeal is disposed of. No costs.