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TMI Blog2011 (3) TMI 1500X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the appellant herein that on account of unjust enrichment at the hands of the State, refund could not be granted. Thus following the decision of the Apex Court reported in Mafatlal Industries Ltd. v. Union of India [1996 (12) TMI 50 - SUPREME COURT OF INDIA] that the concept of unjust enrichment is not applicable as far as State Undertakings are concerned and to the State, apart from the finding of the Tribunal that the assessee had not passed on the liability to its consumers, we reject the prayer of the appellant herein and confirm the order of the Tribunal. Appeal dismissed. - C.M.A. No. 3382 of 2004 - - - Dated:- 18-3-2011 - Chitra Venkataraman and P.P.S. Janarthana Raja, JJ. Shri T.K. Senthil Kumar, for the Appellant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 3/2001 as amended by Notification 4/2002 read with the corrigendum to Notification 4/2002 vide M.F. No. 164/12/2002, dated 6-2-2002 and Notification 6/2002, dated 1-3-2002. The claim of the respondent was rejected on the ground that the respondent had not proved that they had not passed on the duty liability to the consumers and when the electricity rate had remained the same and the exemption notification was not in force, the continuance of the same electricity rates even after availing of the benefits of exemption, would indicate that the assessee had passed on the duty liability to the ultimate consumer. In the circumstances, the claim of the assessee was rejected. Aggrieved by the same, the assessee preferred an appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ariff fixed toy the Government and the tariff rate had not undergone a change, both prior to or after the exemption notification. Consequently, learned Standing Counsel submits that the order of the Tribunal is contrary to the provisions of Section 11A of the Central Excise Act and hence, having regard to the passing on of the duty element, the refund claim should have been rejected. He also placed reliance on the decisions only to contend that unless and until the assessee is in a position to prove that the duty had not been passed on to the consumers, the question of refund of duty, as such, does not arise. 5. Learned counsel appearing for the assessee pointed out that having regard to the factual finding of the Tribunal, the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inued unaltered post exemption notification period also. It is not denied toy the petitioner herein that except for the rate remaining unaltered the revenue has no other material to contest the findings of the Tribunal as regards the assessee not passing on its liability to the consumers. All that the Revenue has raised by way of substantial question of law is whether the Tribunal was right in allowing the refund to the party when the party had already passed on the incidence of such duty, since the proviso to sub-section (2)(e) of Section 11B of the Central Excise Act states that the refund shall be credited to the fund if assessee had passed on the incidence of such duty to any other person. Hence, without disturbing the finding of the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the duty element to be shown in the bills. Whatever might have been the impact of the same in other cases, apart from the levy and collection, the tariff on the consumption of electricity to different consumers is not the same, as the rate to the domestic consumers, to the industrial consumers and the commercial establishments are different, apart from the subsidies and exemptions granted to different sectors. Apart from this, at the relevant point of time, the assessee was a Government Department. 10. As rightly relied on by the learned counsel appearing for the petitioner, the Constitution Bench of the Apex Court, in the decision reported in 1997 (89) E.L.T. 247 (S.C.) (Mafatlal Industries Ltd. v. Union of India), pointed out as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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