TaxTMI 
TaxTMI 
2013 (6) TMI 140
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....ings. 2. In the facts and circumstance where the conveyor belting is a capital goods and it was categorically held by Hon'ble Madras High Court that unjust enrichment is not applicable to capital goods used, whether 1st Respondent-Tribunal is correct in holding that unjust enrichment is applicable to the facts of the present case. 3. In the facts and circumstances where the cost of conveyor belting is not taken into consideration while fixing the price of the coal on the basis of the grade or quality, whether, 1st Respondent is correct in holding that the Appellant has passed on the duty element paid on the capital goods, conveyor belting. 4. In the facts and circumstances where the coal is not leviable to excise duty, whether the Tribunal is correct in holding that duty paid on the capital goods has been passed on to the purchaser of coal. 5. In the facts and circumstances where the cost of production during the disputed period is higher than the price fixed by the Ministry, whether the Tribunal is correct in holding that unjust enrichment is applicable to the present case." Looking to the nature of controversy and with the consent of respective parties, we have tak....
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....e appeal on the ground of unjust enrichment. The appellant then filed further appeal before the Customs Excise and Service Tax Appellate Tribunal (CESTAT) (1st Respondent) and said Tribunal on 3-8-2010 dismissed it vide Final Order No. 638 of 2010 [2011 (273) E.L.T. 153 (Tribunal)]. It is this order which is questioned before us. 4. We have heard Shri Ramesh, Senior Advocate (Chennai) with Shri Mehadia, learned counsel for the appellant and Shri Mishra, Additional Solicitor General of India, learned counsel for the respondents. 5. Shri Ramesh, learned counsel has relied upon the status of the appellant as undertaking of Central Government, to urge that concept like unjust enrichment is not applicable to it. He relies upon the judgment in the case of C.C.E., Bangalore-II v. Karnataka State Agro Corn Products Ltd. reported at 2006 (202) E.L.T. 47 (Kar.) = 2008 (9) S.T.R. 597 (Kar.), for said purpose. As final product is not exigible, there is no occasion for passing over the burden and hence principle of unjust enrichment is again not relevant. To support this, he relies upon the judgment in the case of HMM Ltd. v. Administrator, Bangalore City Corporation, reported at 1997 (91....
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....on 12B, it is apparent that the Parliament has acted upon the normal course followed in all commercial transactions and, therefore, there is a presumption that expenditure incurred by persons like appellants, has been recovered by them while selling their product. Because of this normal business practice, not passing burden of taxes to consumer is an exception & therefore, Section 11B(1) requires person claiming refund to produce along with his application for refund, documentary or other evidence showing that incidence of such duty had not been passed by him to any other person. Here, the findings concurrently reached show that the appellant did not submit any such documentary or other material, hence the application under Section 11B(1) itself was not complete. 9. The judgment of Karnataka High Court in the case of C.C.E., Bangalore-II v. Karnataka State Agro Corn. Products Ltd., (supra) shows that in para 6 of judgment of Hon'ble 9 Judges of the Hon'ble Apex Court in the matter of Mafatlal Industries Limited v. Union of India & Ors. reported at 1997 (5) SCC 536 = 1997 (89) E.L.T. 247 (S.C.), has been looked into and a finding has been recorded that there cannot be any unjust ....
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....ctroi had no right to retain that amount and same was refundable within the period of limitation. Thus, facts there clearly show that initial levy of octroi itself has been found without jurisdiction. Here, that is not the position. Thus, the fact that ultimate product of appellant viz., coal is not exigible, has got no significance insofar as this judgment is concerned and it does not advance the case of present appellant. 11. It is not in dispute that price of coal is fixed by the Ministry of Energy. The perusal of one such notification dated 8-1-1986 shows that the Pit-Head prices of coal were exclusive of royalty, cess, taxes and levy of Government, local authorities and cess, duties, sales tax etc. The provision in its clause 11 also clarifies that the colliery owners are entitled to add to price so determined, the amount equal to such royalty, cess or excise duty or tax. 12. The judgment of the Hon'ble Apex Court in the case of State of Rajasthan & Ors. v. Hindustan Copper Ltd., (supra) shows that there the prices of final product viz., copper was fixed by Mineral and Metal Trading Corporation on the basis of prices determined by London Metal Exchange. It was, therefore....