Final Order No. 995/2003, arising from in Appeal No. E/291/2003. Case: Superintending Engineer, T.N.E.B., Chennai Vs Commr. of C. Ex., Chennai. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Final Order No. 995/2003, arising from in Appeal No. E/291/2003 |
| Counsel | For Appellant: Shri P.C. Anand, CA And For Respondents: Smt. R. Bhagya Devi, SDR. |
| Judges | Shri S.L. Peeran, Member (J) and Jeet Ram Kait, Member (T) |
| Issue | Central Excise Act, 1944 - Section 12B |
| Citation | 2004 (164) ELT 84 (Tri. - Chennai) |
| Judgement Date | November 18, 2003 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
S.L. Peeran, Member (J) (Oral), (South Zonal Bench At Chennai)
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The appellant, Tamil Nadu Electricity Board, is aggrieved with the Order-in-Appeal No. 44/03 (MI), dated 8-4-2003 by which the Commissioner has held that refund claimed by the appellant is available. However, he has held that the refund amounts are required to be transferred to the Consumer Welfare Fund as appellants have not discharged the burden in showing that excise duty has not been passed on to the ultimate customer.
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Appellants contend in this appeal that rates of tariff had been fixed by the Government of Tamil Nadu much earlier to the duty paid in this case pertaining to refund of duty paid on naphtha received by them during the period 30-1-2002 to 19-10-2002 and there is no dispute pertaining to claim of exemption Notification No. 3/2001 as amended by Notification No. 4/2002. It is stated that while arriving at the rate of duty, they had not taken into consideration the amounts which are required to be paid under the said notification as naphtha was exempt from payment of duty under aforesaid notification. The manufacturer/supplier of the naphtha had paid the duty under a mistaken impression that the product was liable to duty. The duty amount which had been collected is not duty as per law and the appellant sought for reimbursement of the same from the department. It is stated that there was no question of unjust enrichment in the matter as duty collected was not passed on to the consumer. They rely on their own case reported in 1999 (106) ELT 499 wherein the Bench after examining the refund claims and the lower authority''s orders held as follows:-
The refund claims were rejected solely on the ground that they are the manufacturers and not the contractors and duty had been rightly demanded and collected from them. As the Tribunal has not categorically held that they are not the manufacturers, therefore, the duty paid by them is required to be refunded and further question of unjust enrichment also does not arise in this case. In view of the matter, following the ratio of the cited judgments in the appellant''s own case, we allow the appeals with consequential reliefs.
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It was stated by the appellant before the lower appellate authority and the adjudicating authority that the power generated by their unit, Basin Bridge Gas Turbine Power Station, i.e. BBGTPS is only fed into the State grid which was distributed to the various customers. BBGTPS does not collect tariff from the consumers and, therefore, question of their getting unjustly enrichment does not arise. The power tariff was revised during 5-12-2001 and the Tamil Nadu Government alone is responsible for such revision and they had not made any further revisions till the date of the hearing of the show cause notices. The appellants referred to the finding recorded in the case of Metro Tyres Ltd. - 1995 (80) ELT 410 (T) wherein the very aspect pertaining to unjust enrichment was discussed and approved in favour of the appellants. The relevant paragraph of the said judgment which is noted in the memorandum of appeal is reproduced herein below:-
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