TMI Blog2003 (11) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... duty, they had not taken into consideration the amounts which are required to be paid under the said notification as naphtha was exempt from payment of duty under aforesaid notification. The manufacturer/supplier of the naphtha had paid the duty under a mistaken impression that the product was liable to duty. The duty amount which had been collected is not duty as per law and the appellant sought for reimbursement of the same from the department. It is stated that there was no question of unjust enrichment in the matter as duty collected was not passed on to the consumer. They rely on their own case reported in 1999 (106) E.L.T. 499 wherein the Bench after examining the refund claims and the lower authority's orders held as follows :- "The refund claims were rejected solely on the ground that they are the manufacturers and not the contractors and duty had been rightly demanded and collected from them. As the Tribunal has not categorically held that they are not the manufacturers, therefore, the duty paid by them is required to be refunded and further question of unjust enrichment also does not arise in this case. In view of the matter, following the ratio of the cited judgments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered. It is stated that on a year to year basis, it is only the Government which provides sizable grants to cover the losses incurred on account of distribution of electricity particularly for the under privileged and to the agricultural sector. It is stated that in fixation of tariff rates the element of excise duty has not been considered at all and, therefore, bar of unjust enrichment would not be attracted. They rely on the judgment rendered in the case of Panihati Rubber Ltd. v. CCE, Calcutta-II - 2001 (127) E.L.T. 742 with regard to para referred below :- "The subsequent letter from the railways indicated that no amount was provided towards excise duty while pricing was worked out. One letter specifically stated "E.D. - Nil". This would suggest that the price fixed under the contract did not provide for an element towards the Central Excise duty. This type of pricing remains covered by the decision of the CEGAT in the case of CIMMCO Ltd. wherein the Tribunal held that the bar of unjust enrichment would not be attracted when the price is inclusive of duties and taxes. Accordingly, following the decision of the CEGAT in CIMMCO Ltd. case, the appeal is allowed with conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. It is stated that in the above cited case, it was noticed that when taxies which were used by the appellant in his business was not considered under the doctrine of unjust enrichment. Therefore, on identical circumstances cited above, appellant, BBGTPS of TNEB would be eligible for refund. They also refer to the judgment of HMM Ltd. v. Administrator, Bangalore City Corporation - 1997 (91) E.L.T. 27 (S.C.) wherein the Apex Court held that when refund relates to duty on raw materials whether imported or brought into the factory and when the refund is not with reference to the finished goods despatched from the factory there can be no question of unjust enrichment. It is stated that Apex Court in the above case held that question of unjust enrichment can possibly arise only with reference to the finished goods manufactured in a factory, which has been despatched as such. 6.Further reference is made to the judgment of CCE, Bhopal v. PCC Pole Factory - 2002 (143) E.L.T. 649 to the following portion :- "Section 12B referred to by the Counsel reads thus : Presumption that the incidence of duty has been passed on to the buyer. Every person who has paid the duty of excise on any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. SDR Smt. R. Bhagya Devi contended that burden of proving that duty has not been passed on to the consumers has not been discharged by the appellant and, therefore, mere fact of price remained constant before and after levy itself is a clear indication of duty burden having not been discharged. She relied on the judgment of the West Zonal Bench of the Tribunal at Mumbai in the case of Godrej Pacific Technology Ltd. v. CC, Mumbai - 2003 (157) E.L.T. 410 (T) = 2003 (58) RLT 454 (CESTAT - Mum.). She also referred to the judgment rendered in the case of CCE, Chandigarh v. Metro Tyres Ltd. - 1995 (80) E.L.T. 410 (T). It is seen from this judgment that Tribunal noted the price even when increased, went up by an amount much less than the amount of duty/differential involved and drew conclusion that incidence of duty/higher duty was not passed on to consumers. This citation is in effect more helpful to the appellants than the Revenue. However, learned SDR cited another judgment of the Tribunal rendered in the case of CCE v. Elgi Ultra Industries - 2002 (146) E.L.T. 396 (Tri. - Chennai) wherein it has been held that no manufacturer would take risk of not passing on the burden of duty. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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