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2016 (3) TMI 134 - CESTAT NEW DELHI

2016 (3) TMI 134 - CESTAT NEW DELHI - TMI - Refund claim - whether claim filed by the appellant is hit by the bar of unjust enrichment in terms of Section 11B of the Central Excise Act, 1944? - Held that:- It is apparently not possible to point out as to out of which exact fund the Central Excise Duty was paid to the Government. The appellants derived their income mainly from supply of electricity. They also apparently get subsidy from the Government. As already noted, these two funds/ income ha .....

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one co-relation as to which money has gone to which expenditure. Such stipulation will be impracticable.

The Hon’ble Madras High Court in Sescot Sheet Metal Works Ltd. vs. CESTAT, Chennai (2015 (4) TMI 386 - MADRAS HIGH COURT) held in the case of State owned Undertakings which are funded, controlled and monitored by the State Government, the doctrine of unjust enrichment will not arise.

Based on the analysis and discussion as above, we find that there is no case for unjust .....

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gainst order dated 26.03.2007 of Commissioner (Appeals), Raipur. The appellants are having a central workshop at Bhilai where they cut the various duty paid angles, plates, channels etc. to required sizes and there after these are sent to various sites for erection of transmission towers. The work is carried out using these materials by their own employees or by contractors. The said tower after erection is used for putting up the aluminium wires for transmission of electricity. Though in the pr .....

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d 11.10.2006 rejected the claim of the appellant on the ground of unjust enrichment and credited the sanctioned refund to the Consumer Welfare Fund of India. 2. Aggrieved by this order, the appellants filed appeal before the Commissioner (Appeals), Raipur. The ld. Commissioner (Appeals) set aside the Original Order and directed the Lower Authority to decide the matter afresh after the appellants produced all the required accounting records, documents, Cash Flaw Statements and all other material .....

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d to them after satisfying the question of unjust enrichment. After the matter reached, the Hon ble Supreme Court and it was held by the Hon ble Court as not barred by limitation, the Department is raising the question of unjust enrichment. The ld. Counsel strongly contended that the examination of unjust enrichment on similar set of facts in respect of appellants themselves has attained finality. Hence, the Department again took a contrary view. It is admitted position that neither the transmis .....

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ion in the case of PCC Poles, which were not sold to any other party the Tribunal held that there is no unjust enrichment vide final order No.A/544/02-NB (SM) dated 02.05.2002. 4. The ld. Counsel for the appellant further relied on the decision of Hon ble Madras High Court in CCE, Chennai-I vs. Superintending Engineer TNEB 2014 (300) ELT 45 (Mad.). The Hon ble High Court held the concept of unjust enrichment is not applicable as far as State Undertakings are concerned and to the State. The Hon b .....

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laimed as refund has not been passed on to any person either directly or indirectly. This being a legal requirement, the burden is on the appellant to clearly establish such fact. 6. We have heard both the sides and examined appeal records. The only point for decision is whether the refund claim filed by the appellant is hit by the bar of unjust enrichment in terms of Section 11B of the Central Excise Act, 1944. It is necessary to note that the appellant was, during the relevant time, a State Go .....

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en affidavit dated 17.06.2003 categorically submitted the various details regarding their operations. It is clear that the tariff rates for electricity were fixed by the State as a matter of administrative policy keeping in view the various considerations. The points relevant to fix the tariff, which determines the income of the appellant organization will cover cross subsidy, Government subsidy, paying capacity of various category of consumers and rationalization. It is apparent that the paymen .....

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subsidy by the Government, it would be the case, where element of duty has been passed on to another person. We are not able to accept such proposition. It is not clear as to how an identity of source fund can be established in an organization like appellants (State Electricity Board). It is apparently not possible to point out as to out of which exact fund the Central Excise Duty was paid to the Government. The appellants derived their income mainly from supply of electricity. They also apparen .....

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ity of different funds and individual records for different receipts for a one to one co-relation as to which money has gone to which expenditure. Such stipulation will be impracticable. 6. We find that the observation of the Hon ble Supreme Court in Mafatlal Industries Ltd. 1997 (89) ELT 247 (SC) is relevant in this case. The Hon ble Madras High Court relying on the said decision of the Apex Court held in C.C.E vs. Superintending Engineer, T.N.E.B. (supra) that unjust enrichment has no applicat .....

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e duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the people of the country. No one can speak of the people being unjustly enriched. 11. In the light of the above said pronouncement of the Apex Court, we do not find any just .....

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