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TMI Blog2010 (8) TMI 226X X X X Extracts X X X X X X X X Extracts X X X X ..... Murthy, Member (T) REPRESENTED BY : Shri Uday Joshi, Advocate, for the Appellant. Shri R.S. Sangia, SDR, for the Respondent. [Order per : B.S.V. Murthy, Member (T)]. - M/s. Oil & Natural Gas Corporation Ltd. (hereinafter referred to as 'the respondent') is inter alia engaged in the exploration of Crude Oil falling under Chapter 27 of Central Excise Tariff Act, 1985 and makes payment of OID cess on quantities of crude oil received by the refinery under the provisions of the Oil Industry (Development) Act, 1974 (the 'OID Act' for short). For the said purpose, the respondent has a Central Excise Registration as well as follows procedures required to be followed under the provisions of Central Excise Act, 1944 (hereinafter referred to as ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent had paid OID cess under the provisions of Oil Industries (Development) Act, 1974 on the full quantity. Consequently, the respondents filed a refund claim for Rs. 61,85,727/- being the excess payment of OID cess relating to 3436.15 MTs of crude oil. The Commissioner (Appeals) in the impugned order held that the appellants were eligible for refund on merit as well as the unjust enrichment clause would not be applicable. Revenue in appeal while not disputing the admissibility of refund on merit, has contended that the respondent is not eligible for the refund on the ground that the doctrine of unjust enrichment would be applicable and the respondents have not established that the they have not passed on the burden of OID cess to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions cited by the Revenue are not of help because in all these cases, dispute related to Excise duty. In the case of Excise duty, duty is to be paid on the quantity at the time and place of removal. Whereas in this case, even though it is treated as Excise duty, the OID cess is required to be paid on the basis of quantity received in the refinery. The matter gets further complicated in view of the fact that according to the MOU between the parties, the OID cess is to be borne by the supplier and not by the receiver even though the liability has to be determined on the basis of actual quantity received. Payment for crude oil is also made based on the quantity received. Further, the MOU also provides that if BS & W level is less than the 0. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is determined. Therefore, whatever payments are made before finalization would be in the form of provisional payments and the actual amount payable has to be determined only by mutual agreement between the two parties. If the quantum of BS&W was less than what was indicated at the time of removal and quantity increased the respondent would have been liable to pay cess with interest. In this case, taxable event is receipt in the refinery. Therefore, due date would commence from the date on which quantity received is finalized if it was disputed. Department is rightly not contesting refund on merit. 8. The question of unjust enrichment does not arise since as per the MOU, cess is not supposed to be passed on and in this case, the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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