TaxTMI 
TaxTMI 
2011 (3) TMI 1500
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....y passed on the incidence of such duty amount (refund amount) and when there is a proviso in sub-section (2)(e) of Section 11B of Central Excise Act, 1944 that the refund shall be credited to the Consumer Welfare Fund if the duty of excise paid by the manufacturer had passed on the incidence of such duty to any other person? (ii) Whether the Tribunal is correct in connecting the sundry receivables (losses) shown in the balance sheet to the passing of duty element? 2. The assessee respondent herein is the Basin Bridge Gas Turbine Power Station of the Tamil Nadu Electricity Board. It filed three refund claims for Rs. 14,28,10,401/-, Rs. 3,12,79,642/- and Rs. 16,62,928/- in respect of the period covered from 30-1-2002 ....
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....the fact as to whether the duty liability had been passed on to the ultimate consumers to accept the plea of the respondent. In paragraph 10 of the order, the Tribunal noted that while fixing the tariff, the State Government had not taken into consideration the amount of duty paid. In the circumstances, the tariff rates had been arrived at much earlier and remained constant. Quite apart, the assessee had incurred huge loss and they were absorbed by the Government of Tamil Nadu. Having regard to the factual finding that the assessee had not passed on the liability, the question of unjust enrichment as such, did not arise. Thus the Tribunal allowed the assessee respondent claim for refund. Aggrieved by the same, the Commissioner of Central Ex....
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.... Court, in paragraph 99, under sub-para (iii) of the judgment, clearly pointed out that the doctrine of unjust enrichment is inapplicable to the State, since it represents the people of the country. No one could speak of the people toeing unjustly enriched. She referred to the decision of the Karnataka High Court reported in 2006 (202) E.L.T. 47 (Kar.) = 2008 (9) S.T.R. 597 (Kar.) (C.C.E., Bangalore-II v. Karnataka State Agro Corn. Products Ltd.) wherein, referring to the decision of the Apex Court reported in 1997 (89) E.L.T. 247 (S.C.) (Mafatlal Industries Ltd. v. Union of India) the Karnataka High Court, held that as far as the State Government is concerned, in a case where the duty liability had been passed, there could not be any alleg....
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.... enrichment in a given case would arise, if and only when there are materials to disturb the finding of fact that the duty liability had been passed on to the consumers. A reading of the Tribunal's order clearly shows that while considering the issue of unjust enrichment, on the basis of the materials produced by the respondent, the Tribunal came to the conclusion that the tariff rate had been arrived at much before the exemption notification and there was no material to suggest that the rate had been fixed, taking into consideration the duty element. 9. It is no doubt true that the letter portion of paragraph 10 as regards the loss in the balance sheet as shown by the Tribunal, would not be a relevant factor in the matter of consider....
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....he Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. 11. In the light of the above said pronouncement of the Apex Court, we do not find any justification in the contention of the appellant herein that on account of unjust enrichment at the hands of the State, refund could not be granted. It may be of relevance herein that in the decision cited by the learned counsel appearing for the respondent, the Karnataka State Agro Corn. Products Limited was shown to have passed on the liability to the consumer and duty had been made over to the Central Gove....