2018 (2) TMI 1491 - AT - Central Excise

Refund claim - benefit of N/N. 64/95-CE dated 06/03/95 - unjust enrichment - Held that - the appellants have relied on the letter of the BPCL by the Assistant Commissioner of Central Excise, Chembur, where he has stated that the appellant should have claimed the refund as the goods were supplied from the IOCL installation. They have also relied on the certificate issued by the BPCL where it has been stated that the transaction payment between BPCL and IOC in respect of said disputed refund have been settled in fully and final - They have also referred on the letter addressed to Assistant Commissioner, Chembur, wherein they have informed that duty amount between the IOC and BPCL in respect of said amount has been settled. It cannot be said that burden of duty was not passed on to IOCL - appeal allowed - decided in favor of appellant.

Summary

Issues:
Claim of refund under Notification No.64/95-CE for supply of LSHFHS Diesel to Indian Navy

Analysis:
1. The appellant, M/s. Indian Oil Corporation Ltd., filed a claim of refund under Notification No.64/95-CE for supplying Low Sulphur High Flash High Speed (LSHFHS) Diesel to the Indian Navy. The claim was initially rejected by the original adjudicating authority, citing a decision of the Hon'ble Apex Court in the case of Leader Engineering Works. However, the Commissioner (Appeals) overturned this decision, allowing the appeal with consequential relief. The Assistant Commissioner then sanctioned a part refund but rejected the balance, stating the inability to determine if the duty amount paid by BPCL had been passed on by the appellant.

2. The appellant argued that they did not recover any duty amount from the Indian Navy, as evidenced by the invoice issued to them. They contended that the refund was only claimed for the duty paid LSHFHS supplied to the Indian Navy. The appellant also presented evidence, including a letter from the Assistant Commissioner and certificates from BPCL, to support their claim that they had borne the duty incidence.

3. The Commissioner (Appeals) rejected the appeal on the grounds of uncertainty regarding who bore the duty incidence. However, the Tribunal noted that the Commissioner (Appeals) had allowed consequential relief, and the Revenue did not challenge this decision. The Tribunal considered the evidence provided by the appellant, such as letters and certificates from BPCL, which indicated that the duty settlement between BPCL and the appellant had been finalized.

4. The Tribunal found that based on the evidence presented, it could not be concluded that the burden of duty was not passed on to the appellant. Therefore, the appellant was entitled to claim the refund, especially since the order of the Commissioner (Appeals) directing consequential relief had not been contested by the Revenue.

5. Consequently, the Tribunal held that there was no merit in the impugned order denying the refund, and the appeal was allowed in favor of the appellant.

This detailed analysis of the judgment highlights the key arguments, evidence presented, and the Tribunal's reasoning behind allowing the appeal for the claim of refund under Notification No.64/95-CE for supplying LSHFHS Diesel to the Indian Navy.