TaxTMI 
TaxTMI 
TaxTMI 
2023 (2) TMI 941
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....Certificate. A Show Cause Notice dated 11.02.2010 was issued to the assessee proposing to reject the refund claim, on the ground of unjust enrichment. After due process of law, the original authority vide Order-in-Original No. 17/2010 dated 22.06.2010 rejected the refund claim. The relevant paragraph of the Order-in-Original rejecting the refund reads as under:- "5.7 Further, I observe from careful scrutiny of the documents that the supplies started with effect from 23.11.2008 by the assessee. As per 'letter of award' i.e. Purchase order, the clauses at 5.1.2 and 5.6; 90% of the reworks price of the conductor shall be paid on presentation of invoices and the payments shall be released directly within 30 days of receipt of invoices. Such being the case for receipt of payments in respect of said supplies, it is to be ascertained beyond doubt as to how the assessee could produce a letter given by M/s. Power Grid Corporation of India Ltd., that they have not reimbursed to the assessee the portion attributable to the excise duty elements of the negative price variation. Otherwise the assessee will be issuing "Credit Notes" after receipt of the claim in which case it would amount to co....
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....he stipulated period of three months. However, no refund/rebate claim should be withheld on the ground that an appeal has been filed against the order giving the relief, unless stay order has been obtained. As the principle of judicial discipline requires that the order of the higher authorities be followed unreservedly by the sub-ordinate authorities. I am bound by the above said O-in-A of the Commissioner (Appeals), Chennai. Hence, I am following the ratio of the above judgement. In the instant case, the applicants have produced a letter dated 11.05.2012 from their customer namely PGCL to the effect that excise duty was not reimbursed due to negative price variation in respect of supplies made against contract agreement C34101-L175-3/CA/2873 dated 19.02.2009. Further, they have also produced T.B for the year 2010-11 and 2011-12 and the refund claimed has been shown under E.D. recoverable a/c in their financial accounts in as much as the applicants have produced relevant documentary evidences. I am satisfied that duty incidence now claimed refund, was not passed on to their customer. The issue involved in this refund claim is of identical in nature. I, therefore, hold that the ref....
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....h invoices etc., were calculated and submitted along with refund claims. The worksheet for the calculation of duty paid would show that the amount claimed as refund has not been realised by the assessee from PGCL. The letter of award (LOA) and other contractual clause would clearly show that price is subject to the fluctuating market prices. So also, from the financial statements, the assessee had established that the excess duty paid by them had been shown as "debit" in their loan and advances account. Further, they produced the Chartered Accountant Certificate. The assessee had thus established that the burden of duty was not passed on to its customer. However, the department had denied the refund with respect to an amount of Rs. 60,10,076/- on the ground of doctrine of unjust enrichment. The refund claim in regard to Rs. 11,86,500/- has been rejected by the Commissioner (Appeals) both on merits as well as on the ground of unjust enrichment. 3.4 The learned Counsel drew our attention to paragraph 6 of the O-in-O dated 30.07.2012 to argue that the adjudicating authority had categorically observed that the assessee had paid excess duty based on the contract value at the time of su....
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....the order impugned in the appeal No. E/42825/2014 and grounds raised in appeal No. E/95/2012. It is submitted that the supplies to M/s. PGCL started with effect from 23.11.2008, as per the letter of award. As per clause 4.2 of this LOA, the contract price is exclusive of taxes and duties which have to be reimbursed by PGCL at the applicable rate at the time of dispatch. Clause 5.1.2 and 5.6 stipulates that 90% of the revised price of the conductor shall be paid on transaction of invoices and all the payment shall be released directly upon presentation of the invoices. This being so, it is impossible to say that M/s. PGCL has not reimbursed the duty. The certificate issued by M/s. PGCL cannot be accepted. The Commissioner (Appeals) in O-in-O dated 02.11.2011 has erroneously concluded that as per the certificate issued by the Chartered Accountant, the amount of duty paid was kept as receivables from the Government in the books of account of the assessee and hence the bar of unjust enrichment has been satisfied. 4.2 The Chartered Accountant Certificate cannot be the basis to hold that the incidence of duty has not been passed on. Learned AR prayed that the appeal filed by the departm....
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....artered Accountant certificate to prove that the duty has not been passed on to their customers, the refund is not hit by unjust enrichment. The relevant portion of the order is as follows:- "3. We heard the learned counsel in length. There was a factual finding by the authorities below that the duty had been paid under protest and the question of time bar would not arise. Hence, the argument that the petitioner paid the duty without protest is rejected. In respect of unjust enrichment, the facts reveal that the price was a composite one fixed by the Ministry of Agriculture. The factual position is that the duty had been absorbed by the assessee and it was submitted that the Chartered Accountant's Certificate dated 8-7-2002 and the profit and loss account, also confirm that the duty paid on the impugned goods had been absorbed by the assessee and had been shown as expenditure in profit and loss account and had not been passed on to the customer. 4. In the foregoing conclusions, we find no error in the order passed by the Customs, Excise and Service Tax Appellate Tribunal and requires no interference. Hence, no substantial questions of law arise for consideration of this Court. ....
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....rt as per judgment dated 31-8-2007 in Appeal Nos. 3, 14 and 21/2007. In the impugned order, the learned Commissioner (Appeals) has rendered correct decision on the issue. 3. In the result both the appeals of the Revenue are dismissed." 6.5 In the case CCE, Tirupathi Vs. Kruool Cylinders Pvt. Ltd. reported in 2007 (219) ELT 473 Tri.-Bang.), it was observed as under:- "5. We have gone through the records of the case carefully. There are many decisions of the Tribunal holding that when there is price escalation, the assessment would be deemed provisional and the refund claim would not be hit by time bar. This Bench itself in the following cases has allowed the appeals of the assessee for refund of the amount on account of downward revision of the prices :- (a) CCE, Hyderabad v. R. M. Cylinders (P) Ltd. & M/s Hyderabad Cylinders (P) Ltd. [Final Order No 1933 & 1934/2005 dated 22-11-2005, 2006 (198) E.L.T. 45 (T)]. (b) M/s Nagarjuna Constructions Co. Ltd. v. CCE, Hyderabad [Final Order No. 324 & 325/2006 dated 15-2-2006, 2006 (199) E.L.T. 155 (T)] The various case laws cited by the appellants are relevant. It is pertinent to note that when there is upward revision....