2006 (12) TMI 373 - AT - Central Excise

Summary

Issues Involved:
1. Provisional pricing and unjust enrichment in refund claims.
2. Refund claims involving CT3 certificates and unjust enrichment.
3. Excess duty payment and unjust enrichment.
4. Arithmetic errors in duty payment and unjust enrichment.

Summary:

Issue 1: Provisional Pricing and Unjust Enrichment in Refund Claims
In Appeal No. E/395/2004, the Revenue challenged the Commissioner (Appeals)'s decision allowing a refund to the assessee, M/s. Gokak Mills Ltd., on the grounds that the prices were provisional and settled later, resulting in excess duty payment. The Original Authority had rejected the refund citing unjust enrichment due to the issuance of credit notes. However, the Commissioner (A) found no unjust enrichment as the transactions were provisional and settled at the end. The Tribunal upheld this view, distinguishing it from the Larger Bench judgment in S. Kumar's Ltd. v. CCE, Indore, which dealt with non-provisional transactions. The Tribunal cited CCE, Guntur v. Triveni Glass Ltd., supporting the assessee's eligibility for a refund without unjust enrichment.

Issue 2: Refund Claims Involving CT3 Certificates and Unjust Enrichment
In Appeal No. E/479/2004, the assessee, M/s. Gokak Mills Ltd., sought a refund for duty paid on cotton yarn cleared under CT3 certificates. The Commissioner (A) rejected the claim, referencing S. Kumar's case. The Tribunal found that the CT3 certificate indicated the customer did not bear the duty burden, and the assessee issued credit notes, proving no duty was passed on to the customer. The Tribunal cited CCE v. Audithiya Minerals Ltd. and Alstom Ltd. v. CCE, Allahabad, ruling that the refund was not hit by unjust enrichment and allowed the appeal.

Issue 3: Excess Duty Payment and Unjust Enrichment
In Appeal No. E/523/2004, M/s. Jineshwar Malleable & Alloys sought a refund for excess duty paid (12.8% instead of 9.6%). The authorities rejected the claim based on S. Kumar's Ltd. The Tribunal, applying the same rationale as in M/s. Gokak Mills Ltd.'s case, found that the excess duty was not passed on to the consumers and allowed the refund.

Issue 4: Arithmetic Errors in Duty Payment and Unjust Enrichment
In Appeal No. E/769/2004, M/s. Mysore Electrical Industries Ltd. claimed a refund for excess duty paid due to an arithmetic error. The Commissioner (A) rejected the claim based on S. Kumar's case. The Tribunal noted that the excess payment due to arithmetic error is not considered duty and is not subject to unjust enrichment provisions. Citing CC, Cochin v. Rajesh Chemicals and CCE, Bhopal v. Tesla Transformers Ltd., the Tribunal allowed the refund with consequential relief.

(Pronounced and dictated in open Court)