2008 (3) TMI 156 - AT - Central Excise

Refund claimed on realizing that Electricity Board was not the manufacturer of RCC poles was rejected on ground of unjust enrichment appellant has shown that recoveries from distribution of power are much less than the cost of generation & transmission of power - Board is run with the subsidy extended by Government - Taking into account also the Chartered Accountant s certificate showing the impugned amount as receivable in accounts we hold that refund doesn t suffer from unjust enrichment

Summary

Issues:
1. Refund claim by Superintending Engineer, TNEB, Nagapattinam.
2. Unjust enrichment in refund amount.
3. Denial of refund to the extent of Rs.17,53,427.
4. Requirement of original duty paying documents for refund.

Analysis:

Issue 1: Refund claim by Superintending Engineer, TNEB, Nagapattinam
The appeal was filed against the order of the Assistant Commissioner of Central Excise, Tanjavur, who sanctioned a refund of Rs. 43,50,765 to TNEB for excise duty paid on RCC poles. The claim was partly rejected for Rs. 17,53,427 due to lack of evidence of payment. The appellant argued that the amount was not passed on to consumers, citing similar cases where unjust enrichment did not apply. The Tribunal examined the appellant's balance sheets and Chartered Accountant's certificate to determine that the refund claim did not involve unjust enrichment.

Issue 2: Unjust enrichment in refund amount
The appellant contended that the excess duty paid on RCC poles did not affect power tariff determination and was recoverable from the excise authorities, not passed on to buyers. The Tribunal considered the appellant's financial situation, including losses incurred and subsidies received, to conclude that unjust enrichment did not apply to the refund claim. Previous decisions supported this finding, emphasizing the importance of showing excess duty as deposits with the authorities.

Issue 3: Denial of refund to the extent of Rs.17,53,427
The appellant requested acceptance of photocopies of TR6 challans as proof of payment for the disputed amount. Citing precedents, the Tribunal noted that refund could not be denied solely for the absence of original documents if payment could be verified through other means. The case was remanded for the appellant to provide original duty paying documents for further consideration.

Issue 4: Requirement of original duty paying documents for refund
The Tribunal emphasized the necessity of original duty paying documents like GP1s, TR6 challans, PLA register, and RT12 returns for refund verification. While the appellant's Chartered Accountant's certificate and balance sheets were considered, the Tribunal ordered the production of original documents for a thorough assessment. The revenue was directed to accept bank scrolls as evidence of duty payment if the original documents were unavailable.

In conclusion, the Tribunal upheld the refund claim not involving unjust enrichment, remanded the case for lack of original duty paying documents, and emphasized the importance of proper evidence for refund verification.