2015 (4) TMI 386

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....ken up, there is no appearance for the 1st respondent/Department. However, this Court is not inclined to adjourn the matter, as the matter pertains to the year 2008. If at all there is any change in counsel, the Department should have taken steps to ensure that a fresh counsel is allocated with the present matter instead of leaving the case to limbo. Nevertheless, on the question of law involved, this Court is proceeding to decide the issue in the absence of the respondent. 3. The facts, in a nutshell, are as hereunder :- The appellant, a wing of the Government of Tamil Nadu, engaged in the manufacture of steel metal products, supplying their entire goods to the Tamil Nadu Civil Supplies Corporation, another undertaking of the State, claimed refund of duty paid on the ground that the goods supplied to the Tamil Nadu Civil Supplies Corporation are exempt from payment of duty under Notification 111/88-CE. The appellant filed the refund claim on 11.1.02. In support of its refund claim, the appellant also furnished Disclaimer Certificate from the Civil Supplies Corporation to the effect that the Tamil Nadu Civil Supplies Corporation will not be taking the relief of refund of duty. Th....

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....ties, has not been considered in the proper perspective. It is further submitted that the appellant, being a State Government owned unit, funded, controlled and monitored by the State Government, the doctrine of unjust enrichment will not arise, as held by the Supreme Court in Mafatlal Industries case (supra), as the appellant would, for all purposes, be a "State" as envisaged under Article 12 of the Constitution. The further argument of the learned counsel for the appellant is that the Department having accepted the fact that the appellant is a State funded, State controlled and State monitored organisation, it cannot go back and say that the appellant is not a "State" and, therefore, the concept of unjust enrichment applies to the appellant.  Reliance has also been placed on the decision of this Court in Commissioner of Central Excise, Chennai - I - Vs - Superintending Engineer, TNEB (2014 (300) ELT 48 (Mad.)) and also the judgment of the Karnataka High Court in Commissioner of Central Excise, Bangalore - Vs - Karnataka State Agro Corn Products Ltd. (2006 (202) ELT 47). 7. Heard the learned counsel appearing for the appellant and perused the materials available on record as....

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....own in Pradeep Kumar Biswass case (supra) for a body to be a State under Article 12. They are: "(1) Principles laid down in Ajay Hasia (1981 (1) SCC 722) are not a rigid set of principles so that if a body falls within any one of them it must ex hypothesi, be considered to be a State within the meaning of Article 12. (2) The question in each case will have to be considered on the basis of facts available as to whether in the light of the cumulative facts as established, the body is financially, functionally, administratively dominated, by or under the control of the Government. (3) Such control must be particular to the body in question and must be pervasive. (4) Mere regulatory control whether under statute or otherwise would not serve to make a body a State." 10. Keeping in mind the above enunciated principles laid down by the Supreme Court, a cursory reading of the order passed by the Tribunal, reveals that the Department itself has accepted that the appellant is a State funded, State controlled and State monitored organisation supplying goods to Civil Supplies Corporation, which is another organ of the State. The order further reveals that the goods supplied by the appell....

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....e situations contemplated by Proposition (ii) above, can succeed only if the petitioner/plaintiff alleges and establishes that he has not passed on the burden of duty to another person/other persons. His refund claim shall be allowed/decreed only when he establishes that he has not passed on the burden of the duty or to the extent he has not so passed on, as the case may be. Whether the claim for restitution is treated as a constitutional imperative or as a statutory requirement, it is neither an absolute right nor an unconditional obligation but is subject to the above requirement, as explained in the body of the judgment. Where the burden of the duty has been passed on, the claimant cannot say that he has suffered any real loss or prejudice. The real loss or prejudice is suffered in such a case by the person who has ultimately borne the burden and it is only that person who can legitimately claim its refund. But where such person does not come forward or where it is not possible to refund the amount to him for one or the other reason, it is just and appropriate that that amount is retained by the State, i.e., by the people. There is no immorality or impropriety involved in such a....