9911796707
TMI Blog2016 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... income have no linkage to the excise duty paid under protest by the appellant. We find that the ld. Commissioner (Appeals) observed the appellants would be deemed to have discharged the onus of absence of unjust enrichment, if excise duty payment was proved to be out of the appellants own fund. We are unable to appreciate such observation. The duty has been paid by the appellants apparently from their fund. There is no identity of different funds and individual records for different receipts for a one to one co-relation as to which money has gone to which expenditure. Such stipulation will be impracticable. The Hon’ble Madras High Court in Sescot Sheet Metal Works Ltd. vs. CESTAT, Chennai (2015 (4) TMI 386 - MADRAS HIGH COURT) held in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court, on 03.03.2006 the appellant filed a refund claim for ₹ 2,78,57,023/-. The Jurisdictional Deputy Commissioner vide his order dated 11.10.2006 rejected the claim of the appellant on the ground of unjust enrichment and credited the sanctioned refund to the Consumer Welfare Fund of India. 2. Aggrieved by this order, the appellants filed appeal before the Commissioner (Appeals), Raipur. The ld. Commissioner (Appeals) set aside the Original Order and directed the Lower Authority to decide the matter afresh after the appellants produced all the required accounting records, documents, Cash Flaw Statements and all other material necessary to determine the source of funds from which excise duty was paid. Aggrieved by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no unjust enrichment vide final order No.A/544/02-NB (SM) dated 02.05.2002. 4. The ld. Counsel for the appellant further relied on the decision of Hon'ble Madras High Court in CCE, Chennai-I vs. Superintending Engineer TNEB 2014 (300) ELT 45 (Mad.). The Hon'ble High Court held the concept of unjust enrichment is not applicable as far as State Undertakings are concerned and to the State. The Hon'ble High Court while confirming the order of the Tribunal affirmed the view that the electricity tariff rate has been arrived at much before the exemption notification and there was no material to suggest that the rate has been fixed taking into consideration the duty element. 5. The ld. A.R. supported the findings of the ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt organization will cover cross subsidy, Government subsidy, paying capacity of various category of consumers and rationalization. It is apparent that the payment of duty on the structurals which are erected and owned by the appellant themselves has no bearing or influence on these tariff rates. In such a situation, the observation of the ld. Commissioner regarding the requirement on the part of the appellant to produce records to show from which fund the Excise Duty has been discharged is irrelevant. In fact the ld. Commissioner (Appeals) further observed that if the source of Central Excise Duty is the funds out of sale of electricity or some form of subsidy by the Government, it would be the case, where element of duty has been passed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w:- 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 follows : 99. The doctrine of unjust enrichment is a just and salutory doctrine. No person can seek to collect the duty from both ends. In other words, he cannot collect the duty from his purchaser at one end and also collect the same duty from the State on the ground that it has been collected from him contrary to law. The power of the Court is not meant to be exercised for unjustly enriching a person. The doctrine of unjust enrichment is, however, inapplicable to the State. State represents the peo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
