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2017 (9) TMI 1680 - HC - Central ExciseRefund claim - unjust enrichment - liability of duty on RCC Poles - Section 12(B) of the Central Excise Act, 1944 - After considering various decisions and by observing that the poles are the property of TNEB, and not sold to any other person, the Commissioner of Central Excise (Appeals), held that TNEB is not a manufacturer of RCC poles, and that there is no question of unjust enrichment, when the poles were cleared for their own use. However, the appellate authority held that TNEB would be entitled to refund of duty paid through Personal Ledger Account only, and no refund can be given, in respect of duty paid, through Modvat Account, as TNEB is not the manufacturer. Held that:- Question, as to whether, incidence of duty, paid by TNEB, has been passed on to the customers, arises if only there is any transaction to that effect. TNEB is not a manufacturer of RCC poles and the same have been used by them. When the Revenue has not produced any evidence to prove that there was any customer, who had purchased RCC poles from TNEB, we fail to understand, as to how, the theory of unjust enrichment, can be applied to the case on hand. Whether, TNEB was a manufacturer of RCC poles and whether there was any transaction with a customer, on facts, have been concurrently held against the revenue. On the material on record, findings of fact, by the appellate authority and the Tribunal, cannot be considered as perverse - Appeal dismissed - decided against Revenue.
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