TMI Blog2019 (11) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... he original authority has relied upon certain decisions but the said decisions are distinguishable inasmuch as the ratio of those decisions was as to how the notification has to be interpreted. But whereas in the present case, eligibility to benefit of the notification is not in dispute and therefore the strict interpretation of the notification is not to be followed because once the appellant is found to be eligible for the benefit of the notification thereafter liberal procedure to be followed, is permissible - the substantive benefit should not be denied for procedural infractions Unjust enrichment - HELD THAT:- Appellant has also established that the incidence of duty has not been passed on to anyone else. Further, the duty amount borne by KPCL has been reimbursed by the appellant and such amount has been show as loans and advances in the books of accounts which clearly shows that the duty amount has not been shown in the income and expenditure in the balance sheet. Hence, duty burden does not arise since the refund amount claimed will be adjusted towards loans and advances. Appeal allowed - decided in favor of appellant. - E/509/2009-DB - Final Order No. 21009/2019 - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the CESTAT vide Final Order No.11/2007 dt. 08/01/2007, the matter was remanded to the original authority for denovo decision along with the direction that adjudicating authority should taken into account the factual and legal position after following all the required procedures. The lower authority rejected that refund claim on the findings that the KPCL has not availed themselves the exemption contained in Notification No.6/2002 dt. 01/03/2002 as amended by Notification No.6/2003 dt. 01/03/2003 and paid duty on purchase of LSHS (even though no duty paying documents have been produced) and they are not eligible for the exemption up to 08/07/2003, the date of fulfilling finally the conditions stipulated in the aforesaid notification, and since KPCL is not eligible for exemption for the period, the question of refund does not arise and hence the KSEB, the purchaser of power from KPCL is also not eligible for refund as claimed by them. aggrieved by the Order-in- Original, appellant filed appeal before the Commissioner(Appeals) who rejected the said appeal. Hence the present appeal. 3. Heard both sides and perused the records. 4. Learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 i.e. on 04/03/2003 itself and he has reproduced the said letter in the grounds of appeal at page 25 of the appeal paper book. Appellant has also given the chronology of events at page 26 of the paper book mentioning the queries raised by the Department and its reply by the KPCL. He further submitted that once the exemption is granted by the original authority vide their certificate dt. 04/06/2003 it relates to and effective from 04/03/2003 when the KPCL applied for exemption after fulfiiling the conditions envisaged in the notification. He further submitted that the delay in granting the permission is on the part of the Department since the appellant had furnished all the information on time and the delay on the part of the Department should not have resulted in denial of just benefit to the appellant. He further submitted that the original authority denying the benefit of exemption from 01/03/2003 to 31/07/203 relying upon the decision which are not applicable in the facts and circumstances of the present case. He further submitted that the question involved in those cases relied upon by the original authority was as to how the notification was interpreted whereas in the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit cannot be denied for procedural infirmity. For this submission, he relied upon the decision in the case of Grasim industries [1990(28) ECC 336]. He further submitted that the appellant is entitled to the refund of excise duty reimbursed by them to KPCL because there was a Power Purchase Agreement signed between KPCl and KSEB. As per Article 7.3(ii) of the Agreement, the excise duty, tax etc. payable on fuel has to be reimbursed by KSEB and the KSEB has reimbursed the duty amounting to ₹ 2,65,66,787/- to KPCL towards excise duty remitted for period 01/03/2003 to 31/07/2003. He further submitted that sufficient documentary evidence by way of balance sheet had been produced to prove that the amount claimed as advance was shown as a loan returnable by KPCL and various other documentary evidences were produced to prove that incidence of duty has not been passed on to anyone else. 5. On the other hand, the learned AR defended the impugned order and submitted that exemption notification has to be construed strictly. She further submitted that there is no dispute that KPCL are eligible for exemption Notification No.6/2003 as amended by Notification No.6/2003, but th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
