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Tamilnadu Asbestos Versus Commissioner of Central Excise, Tiruchirapalli

2015 (9) TMI 38 - CESTAT CHENNAI

Denial of refund claim - whether refund is hit by limitation and doctrine of unjust enrichment would apply and whether appellants are eligible for refund as per the rate contract issued by TWAD Board w.e.f. 28.3.98 - Held that:- Appellant cleared the goods on payment of duty from March 98 to August 98 whereas the claim was filed on 27.11.98. Therefore refund claim pertaining to excise duty paid for the period March 98 and April 98 and partly May-98 are hit by limitation as time-barred for the re .....

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rima facie, the refund claim relates to duty paid for the intervening period after the end of the financial year 1997-98 and pending receipt of revised rate contract from TWAD Board for the year 1998-99 and the appellant had cleared the goods as per the rate contract price of the previous year 1997-98. This fact has been clearly seen from the letter dt. 28.10.98 issued by Joint Chief Engineer, TWAD Board to the appellant. As per the conditions of the said letter, the revised rate was fixed for 1 .....

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998-99 - Refund is time barred for the period from 28.3.1998 to 27.5.1998 - the appellant is eligible for refund for the period 28.5.98 to 31.8.98 - Decided partly in favour of assessee. - Appeal No.E/592/2004 - FINAL ORDER No.40909/2015 - Dated:- 31-7-2015 - Shri R. Periasami, J. For The Appellant : Shri S.Murugappan, Advocat For The Respondent : Shri B. Balamurugan, AC (AR) The appeal is filed against the order-in-appeal dt.10.12.2003 passed by Commissioner (Appeals), Trichy. 2. The issue rela .....

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ince TWAD subsequently reduced the contract price with retrospective effect from 28.3.1998, they filed refund claim as excess duty paid as per the revised rate contract for the said period. The adjudicating authority rejected the claim on limitation and on merits and the same was upheld by Commissioner (Appeals) in the impugned order. 3. Heard both sides. Ld. Advocate appearing for the appellant submits that they filed refund claim under Section 11B of refund of excise duty paid in excess. He su .....

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well as on time bar and also on merit. He submits that the claim period is 28.3.98 to 27.5.98. They have filed the claim on 27.11.98. He submits that duty paid after 26.5.98 is not hit by limitation. He further submits that if the date of receipt of rate contract i.e 28.10.98 is taken, all the claims are within time. He relied on Tribunal's decision in the case of CCE Bhubaneswar Vs Jayshree Chemicals Ltd. - 1997 (96) ELT 625 (Tribunal). 3.1 On the unjust enrichment, he submits that there i .....

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Each clearance was based on the invoice and there is no mention of any price variation either in the invoice or in the purchase orders. Since there was no change in the sale price quoted in the invoice it should be treated as transaction value. He also submits that refund claim is also hit by unjust enrichment. 5. Considered the submissions of both sides and examined the records. The short issue is whether refund is hit by limitation and doctrine of unjust enrichment would apply and whether app .....

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nt of excise duty and the claim has to be filed within a period of 6 months from the date of payment of duty. Therefore, the refund claim for the period 28.3.98 to 27.5.98 is time barred and the refund for the period 28.5.98 to 31.8.98 is not hit by limitation. 6. On merits, I find that appellant supplied PCC pipes to TN Government and it is a government body which is governed by the rate contract issued by TWAD Board every year. Prima facie, the refund claim relates to duty paid for the interve .....

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es that the price payable on all the materials manufactured and cleared, rate contract is applicable for the goods on or after 28.3.1998. Both the adjudicating authority and the appellate authority have taken a view that appellant could have opted for provisional assessment. In the present case, since the rates are fixed by TWAD Board which is applicable for full year, there is no variation in the price and the supplier fixes the rate contract every financial year, clearances cannot be stopped a .....

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quential refund to the appellant. The relevant paragraphs of Supreme Court order is reproduced as under :- "12. We have heard learned counsel for the parties. It is clear that by their letter dated 15.4.2005 the original purchase order dated 31.10.2001 was novated insofar as price was concerned. The novation turned out to be that a price of ₹ 600/- per meter had been charged. ₹ 600/- per meter being less than 5% of ₹ 700/- per meter if the penal rate of 5% was to be applie .....

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