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TMI Blog2010 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... of OID cess on quantities of crude oil received by the refinery under the provisions of the Oil Industry (Development) Act, 1974 (the 'OID Act' for short). For the said purpose, the respondent has a Central Excise Registration as well as follows procedures required to be followed under the provisions of Central Excise Act, 1944 (hereinafter referred to as 'the Act') and the relevant rules read with the provisions of the OID Act under which payment of oil cess is made by the respondent. 2. As per Section 2(e) of the OID Act, crude oil means Petroleum in its natural state before it is refined or otherwise treated but from which water and foreign substances have been extracted. Section 15(2) of the said Act provides that in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ichment clause would not be applicable. Revenue in appeal while not disputing the admissibility of refund on merit, has contended that the respondent is not eligible for the refund on the ground that the doctrine of unjust enrichment would be applicable and the respondents have not established that the they have not passed on the burden of OID cess to the consumer. 4. Heard both sides. Learned SDR submitted that the cess initially paid by the respondent had already been collected from IOCL and only when the issue was settled, the credit note has been issued. Once the burden of duty is passed on to the customer, the subsequent act of issue of credit note does not alter the fact that the burden of duty was initially passed on to the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the fact that according to the MOU between the parties, the OID cess is to be borne by the supplier and not by the receiver even though the liability has to be determined on the basis of actual quantity received. Payment for crude oil is also made based on the quantity received. Further, the MOU also provides that if BS & W level is less than the 0.2 to 0.5%, discount of 0.1 USD per barrel is required to be given and if the BS&W level is between 0.5 to 1%, the discount to be given is 0.15 USD per barrel. Agreement also provides for every increase of 0.5 Volume above 1% volume in BS&W, an additional discount of 0.05 USD per barrel would be applicable This clause itself shows that even though the quantity of BS&W in crude oil can vary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this case, taxable event is receipt in the refinery. Therefore, due date would commence from the date on which quantity received is finalized if it was disputed. Department is rightly not contesting refund on merit. 8. The question of unjust enrichment does not arise since as per the MOU, cess is not supposed to be passed on and in this case, the quantity received was to be finalized by mutual understanding between the two parties and therefore neither of the parties to the dispute can be said to have passed on the liability. Therefore, the initial burden of proving that there was no unjust enrichment in the transaction can be said to have been discharged by the respondent and it is for the department to show that there was unjust en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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