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TMI Blog2019 (1) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... nataka. REC Transmission Project Limited (RECTPL) was appointed by the Central Government as the official bid process coordinator (BPC) for setting up the evacuation and transmission leg of the project. 1.2 RECTPCL had invited Global Invitation for qualification for selection of transmission service provider on Build, Own, Operate and Maintain (BOOM) basis for transmission system required for evacuation of power from Kudgi TPS (3x800) MW in Phase-1) of NTPC Limited through Tariff Based International Competitive Bidding Process and floated Request for Qualification (RFQ) and Request for Proposal (RFP) containing terms and conditions. 1.3 M/s L&T Infrastructure Development Project Limited (L&T IDPL) had submitted its tender for participatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for payment of all taxes, duties, imposts, levies charges, Cess, Licence Fees and other such levies legally payable / incurred until delivery of the contracted supplies to the Employer (KTL). 1.5 M/s L&T IDPL awarded a sub-contract to M/s Larsen & Toubro Limited (Construction), Chennai for Engineering and Supply of Materials valued at Rs. 435,12,60,018/- (inclusive of all Taxes and Duties) for Transmission System. M/s Larsen & Toubro Limited (Construction), Chennai supplied the Tower Materials of 765/400 KV from TLT Pithampur Works falling under Tariff heading No. 73082011 of the Central Excise Tariff Act, 1985 and paid appropriate Central Excise Duty on the clearance of the same. 2. It is a matter of record that the equipment supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty has not been passed on by them and borne by them. I also find that the impugned case is not a case where the value of goods is determined by the government or is beyond the control of the Appellant as contended by them. This is clearly a case of Public Private Partnership on "Build, Own, Operate, Maintain" basis for construction of power plant. So their contention is not sustainable. Therefore, in the facts of the case, I find that the Appellant has failed to discharge the burden cast on them by the statute that the duty incidence has not been passed on by them. So, unless it is proved beyond doubt that the incidence of duty has not been passed on by the Appellant to the ultimate consumer it will be presumed that such duty incidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. L&T IDPL. It is the contention of the learned advocate that it had submitted a Chartered Accountant certificate to the concerned authorities supporting the fact that the burden of duty had not been passed on to any person. Apart from Chartered Accountant certificate, it has also been stated that it had brought on record all the evidence to support the fact that the incidence of duty had not been passed on and therefore, there was no case of unjust enrichment. It has been further been submitted by the learned advocate that as per the standard accounting principles, the duty which was paid by mistake has been shown as duty received in their balance sheet for the relevant financial year and for the subsequent financial years. It has been e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise duty was not passed on to any customer or any other person. 5. The learned advocate has vehemently contended that the project cost in the present case has been decided on the basis of international bidding and as Notification No. 12/2012 CE dated 17 March, 2012 was issued before the bidding process started. Thus, the project cost was decided taking into account the excise exemption and in case any excise duty is paid (when exemption is available), the same cannot be passed on to the buyer as the cost of project is already fixed and nothing can be changed, over the project cost. 6. We have also heard learned Authorized representative of the Department who has supported the findings recorded in the order of the learned Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant only on the ground that the appellant had not been able to cross the bar of unjust enrichment. The project cost had been arrived on the basis of international competitive bidding. It is also a matter of record that Notification No. 12/2012 CE dated 17 March, 2012 was in existence when the costing of the project was decided and bidding of the project took place in 2014. It is an accepted principle that while deciding the project cost of any project, the relevant levies including the exemption notification available at the relevant time are taken into consideration. The appellants, being a 100% subsidiary of M/s. L&T IDPL, was awarded order for the purpose of construction and development of evacuation system under international competiti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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