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2016 (11) TMI 1203 - CESTAT ALLAHABAD

2016 (11) TMI 1203 - CESTAT ALLAHABAD - TMI - Refund - Principles of unjust enrichment - periodical revision of the price depending on the price prevailing in the market - whether the appellant have passed on the burden of Central Excise Duty and accordingly the amount found refundable to them have been rightly transferred to consumer welfare fund? - Held that: - the appellant have not received a single rupee more than the settled amount of ₹ 600/- per meter from the buyers. We further, no .....

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llant is entitled to refund. Allowing the appeals of the appellant we direct the revenue authority to grant the refund within 90 days from the receipt of this order along with interest as per the Rules - appeal allowed. - APPEAL No. E/2185 & 2186/2007-EX(DB) - FINAL ORDER NO-70802-70803/2016 - Dated:- 10-6-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri J.P. Kaushik, Advocate, for Appellant Shri Rajeev Ranjan, Joint Commissioner (AR), for Responde .....

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of electronic (energy) meters. The same were sold to M/s Uttar Haryana Bjli Vitran Nigam Ltd. (UHBVNL). Under purchase order dated 31.10.2001 for supply of 65000 meters @ ₹ 1120/- per meter inclusive of Excise duty, Sales tax and Freight. The entire quantity was to be supplied by 31.03.2002. The prices were firm. However, clause 9 of the said purchase order provided that it is subject to terms and conditions of memo no. Ch. 344/QD-14/XEN/MMI dated 03.04.2001 which provided for periodical r .....

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purchaser Board- Balance duty to be supplied at interim price per meter, in clusine of E. duty, S. Tax, Freight+Ins. under the purchase agreement 1,064/- 1,064/- d. Offer accepted on 12/04/02 12/04/02 e. Price settled per meter, by the Boards (in clusine of taxes, freight & Ins), after the supplies were completed 600/- 600/- f Assessable Value (Basic Price) : 886.10/- 886.10/- g. Excise Duty 141.78/- 141.78/- h. C.S.T. 20.56/- 20.56/- i. Freight & Insurance 15.56/- 15.56/- j. Total 1064. .....

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by UHBVNL in reply dated 11.09.2003 to Revenue s letter dated 27.08.2003, & by DHBVNL in reply dated 29.09.2003. 7. Accordingly, the appellant filed refund claims with the concerned Assistant Commissioner for refund of the excess Excise Duty paid amounting to ₹ 15,68,647/- and ₹ 12,54,856/- respectively stating therein that they had paid duty at the rate of ₹ 141.78 per meter instead of the duty payable at the rate of 79.03 per meter. On the basis of final price of ₹ .....

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by him. Sub-Section (2) of the Section 11-B of Central Excise Act, 1944 provides that the Assistant Commissioner, on being satisfied that the amount of the duty paid by the applicant is refundable, may make an order for the amount to be credited to the Consumer Welfare Fund. Hence, it comes under the purview of unjust enrichment. Therefore, I find that the refund claim filed for ₹ 15,68,647/- & ₹ 12,54,856 on the ground that incidence of duty for which refund claim has been filed .....

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ted price i.e.Rs.1064 per meter, the price actually paid by the purchaser was ₹ 600/meter, which was accepted by the supplier & accordingly the supplier managed to show the basic price, basic excise duty etc. & now showing that duty has been paid keeping in mind that the price was 1064/- and not 600/meter & subsequently accepts the price of 600/meter. They neither stopped the supply nor filed any suit against purchaser. This situation does not convince me. This simply reflects .....

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sed on to the consumers and hence need to be credited to the Consumer Welfare Fund as per the provisions of Section 11B of Central Excise Rules, 1944. I have also found that the case do not fall under the purview of time barred. As per the provisions of Section 11B the refund claim is to be made within a period of one year from the relevant date. In the instant case the clearances pertain to period from 23.04.02 to 25.5.02 and the refund claim was made on 24.01.2003 which is well within prescrib .....

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re commissioner (Appeals) who vide impugned Order-in-Appeals has rejected the appeal observing as follows:- I also find that as per provision of Section 12B of the Central Excise Act, 1944, the onus to prove that incidence of duty has not been passed on lies on the applicant. The appellants vainly tried to prove that burden of duty has not been passed on to their buyers by furnishing letter dated 19.09.2003 written by DHBVNL, i.e. by the buyer, addressed to the Deputy Commissioner, Central Excis .....

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47/- & ₹ 12,54,856/- has been paid by them and has not been passed on to others. Further, it is well settled that refund, even if otherwise due on merits, cannot be granted if the same does not qualify the test of unjust enrichment under Section 11B of the Central Excise Act, 1944. In the instant case such test of unjust enrichment has not been qualified as aforesaid. Therefore, I am inclined to hold that amount of refund has been rightly credited to the Consumer Welfare Fund under Sec .....

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more than the settled price of ₹ 600/meter. The learned counsel argued that without any contrary facts on record, nor there being any evidence of collection of the duty paid in excess, the principle of unjust enrichment is not attracted. Further the facts supporting the settled price and amount received by the appellant from the concerned buyers/electricity board stood verified by revenue. Accordingly, he prays for setting aside the impugned order with consequential benefits. The learned .....

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cerned. 11. We have heard learned counsel for the parties. It is clear that by their letter dated 15.04.2005 the original purchase order dated 31.10.2001 was no-vated insofar as price was concerned. 12. The novation turned out to be that a price of ₹ 600/-per meter had been charged. ₹ 600/-per meter being less that 5% of ₹ 700/-per meter if the penal rate of 5% was to be applied therefore became the price without reference to any penal rate. This price had been fixed before rem .....

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