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TMI Blog2011 (1) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... t the appellant filed a refund claim for Rs. 2,93,855/- on the ground that they obtained a contract from M/s. Tirupur Industrial Waster Water Recycling Company Ltd. and had placed orders for supply of Electro Magnetic Flow Meter for execution of the project located at Tirupur. The said supplies were exempted from payment of duty vide exemption Notification No. 3/2004-C.E. dated 08/01/2004 subject to the condition that a certificate to the effect that the goods are intended for use specified therein from the Collector of District Magistrate / Commissioner be produced. They could not produce such certificate at the time of clearance of the goods to the Central Excise authorities and therefore, after obtaining the certificate they claimed refund of the duty already paid. The refund claim was rejected by the lower adjudicating authority on the ground of unjust enrichment. Aggrieved by the order of the adjudicating authority the appellant filed an appeal before the Commissioner (Appeals) who vide his order dated 27/02/2008 upheld the order of the lower authority. Aggrieved by the order of the Commissioner (Appeals) the appellant filed an appeal before this Tribunal. This Tribunal vid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 (257) ELT 257 wherein it was held that, if amount shown in Profit Loss account it must have been factored into price of goods manufactured by them, which situation would fit well in the contention that the goods were sold at cum-duty prices by the assessee and their customers - and consequently the burden of duty would be deemed to have been passed on to the buyers of the goods. The learned SDR further relies on the decisions of the Tribunal in the case of Commissioner of Central Excise, Pune - II vs. Super Craft Foundry 2009 (247) 673; Paper Products Ltd. vs. Commissioner of Customs (Import), Mumbai-I 2009 (233) ELT 227 and Corning S.A. vs. Commissioner of Central Excise, New Delhi 2005 (192) ELT 355. 6. In their rejoinder, the learned counsel submitted that all the case laws cited by the learned SDR relates to the manufacturer of goods directly and in their case they are neither manufacturer nor utilising the goods in captive consumption. The appellant themselves borne the duty burden and the duty burden has not been passed on to the project authorities. Therefore, the case laws relied upon by the department are not relevant to the facts of the case. 7. I have considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the duty incidence had been absorbed by the appellants and not passed on. In this connection, they cited the decision of the Hon'ble High Court. It is pertinent to mention that the legal issues relating to 'unjust enrichment' which is contained in Section 11B of the Central Excise Act, 1944 are covered by a number of Tribunal judgements. The Tribunal have laid down the general principle that the question of whether the incidence of duty is passed on or not to the consumer would have to be evaluated on the basis of the accounting treatment accorded to the excise duty payment in the books of accounts of the company. Specifically, the Tribunal in the case of Rajasthan Spg. Wvg, Mills Ltd. had opined that if the duty is shown as expenses and debited to the Profit Loss Account, the same would have to be treated as having been passed on to the consumer. This view was also reiterated by the Hon'ble Tribunal in the case of Inn-Venue Hospitality Management Pvt. Ltd. vs. CCE, Pune III reported in 2008 (225) ELT 500 (Tri.Mumbai). The extracts of the judgement are reproduced below: "In the case of Rajasthan Spinning and Weaving Mills reported in 2006(194)ELT254, the Tribunal has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uly accounted by IVRCL Infrastructure Projects Ltd., and duly debited to Construction Expenses in the Profit Loss Account for the year 2006-07. The said invoice value is forming part of Rs. 19497.28 Million total Construction Expenses. We further certify that IVRCL Infrastructure Products Ltd., has claimed only agreed materials value as per the Contract with Thirupur Industrial Waste Water Recycling Company Ltd., and Central Excise has not been collected from Thirupur Industrial Waste Water Recycling Company Ltd." 7.3 The appellant have also produced a certificate dated 19/06/2009 issued by Tirupur Industrial Wastewater Recycling Company Limited, which reads as under: "TO WHOMSOEVER IT MAY CONCERN Sub: No objection for claiming refund by M/s IVRCL Infrastructure Projects Limited (IVRCL) As per Notification No.3/2004 Central Excise, dated 8th January 2004, all items of machinery, including instruments, apparatus and appliances, auxiliary equipments and their components/parts required for setting up of water supply plants and pipes needed for delivery of water from its source to the plant and from there to the storage facility is exempt from the excise duty. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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