TaxTMI 
TaxTMI 
2017 (9) TMI 1680
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....s. The adjudicating authority vide Order-in-Original No.51/99, dated 01.12.1999 decided that M/s.TNEB is not a "Manufacturer" of RCC Poles and the contractor is the real manufacturer. Refund claim was consequential to the abovesaid finding and the said decision in Order-in- Original No.51/99, dated 01.12.1999, has not been challenged by the Department. 3. Consequent to the same, M/s.TNEB has filed a consolidated refund claim for Rs. 53,26,610.34, in respect of 11 RCC Yards, falling under Dharmapuri Circle, on the ground that they were eligible for the said amount paid by them, as duty towards RCC Poles manufactured on Contract basis, during the period 1986-1996. The claims were lodged with the Deputy Commissioner of Central Excise, Hosur I Division. According to the department, TNEB did not furnish the required documents to the Divisional Office to prove that the claim. Documents, directed to be produced in the Department's letter, dated 19.03.2001, are (a) PLA Register; (b) RG23A Part 1/Part 2 Register; (c) Yardwise value of RCC Poles manufactured - Contractor-wise; and (d) Copy of invoices (Yard-wise) raised by Contractors for supply of poles of TNEB. As there was no reply f....
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....ch duty to the buyer of such goods unless he proves the contrary. Inasmuch as the respondent had failed to prove the same, they are not eligible for refund of duty paid. (3) Whether in the facts and circumstances of the case, the CESTAT, Chennai was legal and correct in rejecting the appeal of the department." 7. In support of the above substantial questions of law, the appellant has raised following grounds, as follows: "(i) The Tribunal has failed to consider that the TNEB failed to prove with documentary evidence that the Duty Incidence has not been loaded either in the cost of Poles or on the Cost of electricity sold and as such TNEB is not entitled for the refund which ought to have been credited to the Consumer Welfare Fund. (ii) Vide letter, dated 07.02.2004, TNEB has classified that development charges are levied for the development of generation, transmission and distribution to the customers. The Tribunal has failed to consider that the RCC Poles are required to install transmission wires/cables through which the power is transmitted to the consumers. Therefore any organization will normally include the cost of all the materials used for establishing the infrastruc....
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.... (vii) The Tribunal has failed to consider that the issue has been settled by the Hon'ble Apex court in the case of Solar pesticides (2000(116)EL T 401 (S.C)), wherein it has been held that the concept of unjust enrichment shall apply even in the case of captively consumed inputs. The Hon'ble Supreme Court in the Case of Mafatlal Industries Limited v. UOI (1997 (89) 247 SC)) (para 91) has held that as per Section 12B, every person who has paid duty excise on any goods shall be deemed to have passed on the full incidence of such duty to the buyer of such goods unless he proves the contrary. In as much as the respondent had failed to prove the same, they are not eligible for refund of duty paid. The theory of unjust enrichment has been propounded by the Supreme Court in large number of decided cases, viz., i) Union of India v. Jain Spinners Ltd. - 1992 (61) E.L.T. 321 = J.T. 1992 (5) Supreme Court 386 and ii) Union of India v. I.T.C. Ltd., 1993 (67) E.L.T. 3 (SC) = J.T. 1993 (4) Supreme Court 250, would suffice for the purpose of deciding this case. In the case of Jain Spinners, the Hon'ble Supreme Court held that the respondents therein are not entitled to take advantage....
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....t enrichment applies even in the case of captive consumption and held that the revenue failed to demonstrate how the duty liability if any has been passed on to the consumer without being borne by the respondent and dismissing the department appeal is erroneous and bad in law. Heard Mr.A.P.Srinivas, learned Senior Standing Counsel for the appellant and perused the materials available on record. 8. Before adverting to the submissions, let us have a cursory look at the provisions, relevant for the lis. Section 11B of the Central Excise Act, 1944, reads thus, "If, on receipt of any such application the Assistant Commissioner of Central Excise is satisfied that the whole or any part of the Duty of Excise paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund Provided that the amount of duty of excise as determined by the Assistant Commissioner of Central Excise under the foregoing provisions of this subsection shall, instead of being credited to the Fund, be paid to the applicant, if such amount is relatable to - (i) Rebate of duty of excise on excisable goods exported out of India or on excisable material....
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....round allowed all their appeals and dismissed the Commissioners appeal in Appeal No. E/1245/95. Therefore it follows that the duties paid by them on protest is required to be refunded in terms of the refund claim filed by them. The refund claims were rejected solely on the ground that they are the manufacturers and not the contractors and duty had been rightly demanded and collected from them. As the Tribunal has not categorically held that they are not the manufacturers, therefore the duty paid by them is required to be refunded and further question of unjust enrichment also does not arise in this case. In that view of the matter, following the ratio of the cited judgments in the appellants' own case, we allow the appeals with consequential reliefs." 12. There are no materials before us to indicate, as to whether, the revenue has challenged the above decision of the Tribunal. However, the dispute in the case on hand, is that M/s.TNEB has not produced sufficient reliable/required documents to the Deputy Commissioner of Central Excise, to prove that the amounts claimed by them, have been discharged and paid towards duty on RCC poles, during the relevant period. After verifying ....
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....tment, Dharmapuri Range was transferred to Salem II Division with effect from 01.11.2002. The RCC Yards falling under the jurisdiction of Dharmapuri Range is not under the control of Salem II Division. Hence, the adjudication of show cause notice is not being restricted to the three RCC Yards viz. Hosur, Krishnagiri and Bargur falling under the jurisdiction of this division. Meantime since there was a change in the adjudicating authority and as I have taken charge as Assistant Commissioner, Hosur I Division, I granted a personal hearing to M/s TNEB on 9.01.03 Smt.G.Rajalakshmi, Asst. Executive Engineer who attended the personal hearing requested for another Personal Hearing. The next hearing was held on 23.01.03. Smt.G.Rajalakshmi, Asst, Executive Engineer (Civil) attended the personal hearing on the said date and submitted a statement dated 21.01.03 giving a list of documents pertaining to Hosur and Bargur and requested for granting refund based on these documents. M/s TNEB in their final reply dated 27.01.03 submitted that they have produced the related documents for the refund of central excise duty paid under protest for RCC poles manufactured at Krishnagiri, Hosur and Hargur....
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....ind that the sum total of all the amounts paid vide TR 6 challans under accounting head 038 will be equal to the sum total of the debits and balance in their PLA. RG 23 A PART I & II M/s TNEB have availed modvat credit and utilised the same for payment of duty. Now since M/s TNEB are not the real manufacturers and they are not required to pay the duty, hence the question of refund of credit available in their RG 23 A does not arise. I find RG 23 Part I & II is not related to this issue of refund. VALUE OF RCC ROLES MANUFATURED (YARD WISECONTRACTOR WISE) I find this irrelevant to the issue of refund in as much as the refund pertains to the amounts deposited towards duty by M/s TNEB and the same is available in the TR 6 challans under the accounting head 038. COPIES OF INVOICES RAISED BY CONTRACTORS(YARD WISE) I find this irrelevant to the issue of refund in as much as the refund pertains to the amounts deposited towards duty by M/s TNEB and the same is available in the TR 6 challans under the accounting head 038. I find that the TR 6 challans are the basic documents evidencing payment to the government account. I find that M/s TNEB have credited in the TR6 Challans, th....