2017 (9) TMI 1680 - HC - Central Excise

High Court rules TNEB not liable for duty on RCC Poles, grants refund under Central Excise Act

The Commissioner of Central Excise, Chennai III Commissionerate, Chennai Versus The Tamil Nadu Electricity Board And The Customs, Excise & Service Tax Appellate Tribunal, Chennai

The Commissioner of Central Excise, Chennai III Commissionerate, Chennai Versus The Tamil Nadu Electricity Board And The Customs, Excise & Service Tax ... Issues Involved:1. Liability of duty on RCC Poles.2. Eligibility for refund claim by TNEB.3. Application of the concept of unjust enrichment.4. Compliance with Section 11B and 12B of the Central Excise Act, 1944.5. Verification of documentary evidence for refund claims.Detailed Analysis:1. Liability of Duty on RCC Poles:The dispute originated from the Superintending Engineer, Tamil Nadu Electricity Board (TNEB), using RCC Poles supplied by contractors. The Commissioner of Central Excise, Chennai III Commissionerate, raised a dispute regarding the liability of duty on RCC Poles. The adjudicating authority decided that TNEB is not a 'Manufacturer' of RCC Poles, and the contractor is the real manufacturer. This decision was not challenged by the Department, leading to TNEB filing a consolidated refund claim.2. Eligibility for Refund Claim by TNEB:TNEB filed a refund claim for Rs. 53,26,610.34, paid as duty towards RCC Poles manufactured on a contract basis during 1986-1996. The Deputy Commissioner of Central Excise, Hosur I Division, required TNEB to furnish specific documents to prove the claim. Despite multiple personal hearings and partial submission of documents, the adjudicating authority verified the available documents and sanctioned a refund amount of Rs. 17,74,300/-.3. Application of the Concept of Unjust Enrichment:The Department appealed against the refund order on the grounds of unjust enrichment. The Commissioner (Appeals) dismissed the Revenue's appeal, stating that the issue was beyond the scope of the Show Cause Notice and that TNEB had not passed the incidence of duty to the consumers. The appellate authority and CESTAT upheld this view, emphasizing that TNEB used the poles for their own infrastructure and did not sell them to any other person.4. Compliance with Section 11B and 12B of the Central Excise Act, 1944:The appellant argued that TNEB failed to prove with documentary evidence that the duty incidence was not passed on to the consumers. Section 11B requires the claimant to establish that the duty incidence was not passed on to any other person. Section 12B presumes that the duty incidence is passed on unless proven otherwise. The adjudicating authority and appellate bodies found that TNEB did not pass on the duty incidence, as there was no evidence of any transaction involving the sale of RCC Poles to customers.5. Verification of Documentary Evidence for Refund Claims:The adjudicating authority verified documents such as the PLA Register, TR6 Challans, RG23A Part 1 and 2, and invoices raised by contractors. Despite incomplete documentation, the authority concluded that TNEB was eligible for a refund based on the available evidence. The appellate authority and CESTAT concurred, noting that the refund pertains to amounts deposited towards duty by TNEB and not passed on to consumers.Conclusion:The High Court dismissed the Civil Miscellaneous Appeal, affirming that TNEB is not a manufacturer of RCC Poles and did not pass on the duty incidence to any other person. The substantial questions of law were answered in the negative, against the revenue, and the refund claim by TNEB was upheld.