TMI Blog2017 (9) TMI 1680X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - C.M.A.No.2715 of 2015 - - - Dated:- 20-9-2017 - MR. S.MANIKUMAR AND MR. V.BHAVANI SUBBAROYAN, JJ. For the Appellant : Mr.A.P.Srinivas For the Respondent : Mr.V.Viswanathan JUDGMENT S.MANIKUMAR, J. Civil Miscellaneous Appeal is directed against the order of the Customs Excise and Service Tax Appellate Tribunal, Chennai, dated 16.12.2014 in Final Order No.40985 of 2014, by which, the Tribunal has upheld the original order. 2. The Superintending Engineer, Tamil Nadu Electricity Board, Electricity Distribution Circle, Dharmapuri, 1st respondent herein, has been using RCC Poles, supplied by their Contractors and that the latter used to supply necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contractors (Yard wise), the adjudicating authority, vide Order-in-Original No.49 of 2003, dated 31.07.2003, ordered refund amount of ₹ 17,74,3001/-. 5. Aggrieved by the order of the adjudicating authority, dated 31.07.2003, directing refund, the department has preferred an appeal with the Commissioner (Appeals), on the ground of unjust enrichment. The Commissioner (Appeals) has dismissed the Revenue Appeal, vide Order-in- Appeal No.19/03(M)-III, dated 23.12.2003, holding that it was beyond the scope of Show Cause Notice. 6. Aggrieved by the same, the department has preferred an appeal before CESTAT, Chennai, who in turn, dismissed the Revenue's appeal, vide Final Order No.40985 of 2015, dated 16.12.2014, against which, the present appeal has been filed, on the following substantial questions of law, (1) Whether as per Section 11B of Central Excise Act, 1944 claimant of refund has to establish the fact, that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, the assessee, and the incidence of such duty had not been passed on by him to any other person by way of documentary or other evidence (including docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty burden which is claimed as refund, to the customers. In case the duty burden has been passed on to the buyers then, it would be buyer, who is entitled to claim the refund, in question. Here again, the buyer will be entitled to refund, if he has not passed on the incidence of duty to any other person. As per Section 11B of Central Excise Act, 1944 claimant of refund has to establish the fact that the amount of duty of excise in relation to which such refund is claimed was collected from, or paid by, the assessee, and the incidence of such duty had not been passed on by him to any other person by way of documentary or other evidence (including documents referred to in section 12A Central Excise Act, 1944). Further as per Section 12B of Central Excise Act, 1944 it has to be presumed that the assessee claimed refund has passed on the burden of duty unless the contrary is proved by them. In this case the TNEB obviously, has not proved or established that they have not passed on the duty burden to any other person either directly or indirectly as required. (vi) Section 11B(2) is also applicable, in case of refund which arise out of the judgment decree, order or direction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to rebut the presumption that it had not passed on the burden of the excise duty to any other person as envisaged by Section 12(B) of the Act. (ix) In the following decisions, the Hon'ble Tribunal held. that Refund not allowable if applicant has failed to plead that he had not passed on burden of duty to others Reference can be made to (i) Union of India v. Alang Ship Breakers (P) Ltd., - 1993 (67) E.L.T. 449; (ii) Union of India v. Jain Spinners Ltd. -1992 (61) E.L.T. 321; and (iii) Union of India v. ITC Ltd. - 1993 (67) E.L.T. 3 (SC). (x) In the case of Toyota Kirloskar Motor Ltd. Vs. CCE., Aurangabad-II , it was held that Assessee made no effort to produce additional materials/evidence before the Tribunal, even after remand of matter, such that evidence on record was not sufficient to show that incidence of duty was not passed on to the customers (xi) In the instant case, TNEB, the first respondent herein had expressed their inability to produce the age-old documents in support of their claim while replying to the Show Cause Notice which proves that the assessee had failed to prove with documentary evidence that the incidence of duty has not been load ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods. 10. The term manufacture refers to a process involving the conversion of an input into a completely different output. As per section 2(f) of Central Excise Act, 1944 (CEA), manufacture includes any process, (i) Incidental or ancillary to the completion of a manufactured product; and (ii) Which is specified in relation to any goods in the section or chapter notes of the 1st Schedule to the Central Excise Tariff Act, 1985 (CETA), as amounting to manufacture (deemed manufacture); or (iii) Which in relation to goods specified in 3rd Schedule of CETA involves packing or repacking of such goods in a unit container or labeling or re-labeling of containers including declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer (deemed manufacture). 11. In a decision in TNEB, Superintending Engineer v. CCE Trichy reported in 1999 (106) ELT 499 (Tri .), CESTAT, Madras, had made the following observations, 6. On a careful consideration of the submission, we notice that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced the original records for all the RCC Yards at the time filing of original claims and the details of contractors who manufactured the RCC poles could not be collected since the details were pertaining to the period from 1986-87 and requested for refund of the duty paid under protest on the basis of available records. Another personal hearing was granted to M/s TNEB on 06.05.02. Smt.G.Rajalakshmi, Asst. Executive Engineer (Civil), TNEB Dharmapuri attended the personal hearing and reiterated the same points and difficulties in producing the age-old documents in support of their claim as mentioned in their reply to the show cause notice. Further they stated that they had already submitted documents pertaining to 3 years which had been retrieved with lot of sustained efforts and requested for further period of one month to search and submit relevant documents for the remaining yards and requested to keep the issue alive till such time. The Superintending Engineer, DEDC, Dharmapuri in his letter dated 12.11.02 has certified that M/s TNEB, is not the real manufacturer of RCC / PSC poles and the contractors alone are the real manufacturers; that they have not passed the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew Delhi in the case of Superintending Engineering Dharmapuri Vs. Collector of Central Excise (Appeals) Madras, No.579/96 O dated 8.10.96 wherein it was held taht the contractor was the manufacturer of RCC poles and not M/s TNEB. M/s TNEB was asked to produce (a) PLA register (b) 23 A Part I and Part II registers (c) Yard wise value of RCC poles manufactured - Contractor wise (d) Copies of invoices (Yard wise) raised by contractors for supply of poles to TNEB. M/s TNEB have not been able to produce the above said documents in full. M/s TNEB have not produced the register from 1986 onwards in r/o Krishnagiri Yard, from April 91 to March 95 with regard to Hosur Yard and from april 93 to March 2000 in respect of Bargur Yard. Hence it is seen that they have not been able to produce the PLA registers in full for the relevant period except for Krishnagiri. In respect RC 23 A Part I and Part II registers, they have produced the registers from 92 to 95 in respect of Krishnagiri and Bargur Yards and from April 91to March 95 with respect to Hosur Yard. I have gone through the documents produced by M/s TNEB only in respect three RCC yards falling under my jurisdiction. I am now discussing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refund can be given, in respect of duty paid, through Modvat Account, as TNEB is not the manufacturer. 15. Aggrieved by the same, the Commissioner of Central Excise has filed an appeal before Appellate Tribunal, on the ground that the 1st respondent-TNEB had unjustly enriched. To support the same, Revenue has placed reliance on a decision in Union of India v. Solar Pesticide Pvt. Ltd., reported in 2000 (116) ELT 401 (SC) . CESTAT, Madras. After considering the decision in Solar Pesticide's case (cited supra), the Tribunal, vide Final Order No.40985/2014, dated 16.12.2014, held as follows: There is no difference to the citation of Revenue in the case of Union of India v. Solar Pesticide Pvt. Ltd., 2000 (116) ELT 401 (SC), wherein the Apex Court has held that doctrine of unjust enrichment applies even in the case of captive consumption. But Revenue has failed to demonstrate how the duty liability if any has been passed on to the consumer without being borne by the respondent. Therefore, the Revenue's appeal fails for no evidence on record. 16. Question of payment of duty arises, if there is any manufacturing activity and clearance from factory site. As state ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
