Refund granted to MPEB for excess duty paid on PCC poles within statutory limit. Unjust enrichment clause inapplicable.

The lower appellate authority allowed the refund claim by the Madhya Pradesh Electricity Board (MPEB) for excess duty paid on PCC poles, finding it within the statutory limitation period. The unjust enrichment clause was deemed inapplicable as the goods were cleared by MPEB for their own use, not to any other person. Since no sale occurred when the goods were cleared to MPEB's project sites, the presumption under Section 12B of the Central Excise Act did not apply. The claim was upheld, and the appeal against the Commissioner (Appeals) decision was dismissed.

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Issues: Refund claim time-barred, unjust enrichment clause application, presumption under Section 12B of the Central Excise Act, clearance of goods to "any other person."

Refund Claim Time-Barred: The Madhya Pradesh Electricity Board (MPEB) filed a refund claim for excess duty paid on PCC poles cleared during October 1987 to January 1990. The jurisdictional Assistant Commissioner found the claim within the statutory period of limitation of six months from the finalization of duty assessment and allowed the claim. The department contended the claim was time-barred, but the lower appellate authority rejected this plea and examined the merits of the claim, ultimately ordering the refund to be made to the claimant.

Unjust Enrichment Clause Application: The department argued that the incidence of duty had been passed on by the PCC Pole Factory to MPEB, making the unjust enrichment clause applicable. However, the Commissioner (Appeals) held that the bar of unjust enrichment did not apply as the goods were cleared by MPEB to themselves, not to any other person. The Counsel for the respondent further argued that since there was no sale of the goods when cleared to MPEB's project sites, there was no buyer for the goods, and thus, the department was not entitled to the presumption under Section 12B of the Central Excise Act.

Presumption Under Section 12B of the Central Excise Act: Section 12B creates a presumption that the incidence of duty has been passed on to the buyer, unless proven otherwise. In this case, since no sale of PCC poles was shown to have taken place when cleared to MPEB's project sites, the Revenue was not entitled to the presumption under Section 12B. MPEB was consuming the goods at their project sites, and there was no clearance of the goods to any other person, negating the question of the incidence of duty passing on to any other person under Section 11B.

Clearance of Goods to "Any Other Person": The goods were cleared by MPEB from their factory to their project sites for consumption, with no clearance to any other person. Therefore, the question of the incidence of duty passing on to any other person did not arise. The refund claim was found admissible, not being hit by any bar of unjust enrichment under Section 11B, and was rightly allowed in absolute terms by the lower appellate authority. The order of the Commissioner (Appeals) was sustained, and the appeal against it was rejected.

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