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TMI Blog2019 (1) TMI 1886X X X X Extracts X X X X X X X X Extracts X X X X ..... ly covered by construction under international competitive bidding and same were exempted from payment of Central Excise duty - N/N. 12/2012-CE dated 17 March 2012 - HELD THAT:- The Chartered Accountant certificate dated 14 March, 2016 categorically mentions that the Excise duty claimed by the appellant, was not shown as expenses in the profit and loss account of the appellant firm, and, therefore, the requirement of fulfillment of conditions with regard to unjust enrichment was fulfilled. Such a certificate was given after due examination of the books of accounts of the appellant firm. The appellant therefore, has not passed the burden of central excise duty paid by it to the project owners and thus was not hit by unjust enrichment and was entitled for refund of Central Excise duty paid by it. Appeal allowed. - Excise Tax Appeal No. 50904/2018 - FINAL ORDER NO. 50936/2019 - Dated:- 31-1-2019 - MR. DILIP GUPTA, PRESIDENT AND MR. C L MAHAR, MEMBER (TECHNICAL) Shri Sparsh Bhargava, Advocate for the Appellant Shri H C Saini, Authorized Representative for the Respondent ORDER The brief facts of the matter are that the appellant is a company of National Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contract, the Contractor (M/s L T IDPL) shall be entirely responsible for payment of all taxes, duties, imposts, levies charges, Cess, Licence Fees and other such levies legally payable / incurred until delivery of the contracted supplies to the Employer (KTL). 1.5 M/s L T IDPL awarded a sub-contract to M/s Larsen Toubro Limited (Construction), Chennai for Engineering and Supply of Materials valued at ₹ 435,12,60,018/- (inclusive of all Taxes and Duties) for Transmission System. M/s Larsen Toubro Limited (Construction), Chennai supplied the Tower Materials of 765/400 KV from TLT Pithampur Works falling under Tariff heading No. 73082011 of the Central Excise Tariff Act, 1985 and paid appropriate Central Excise Duty on the clearance of the same. 2. It is a matter of record that the equipment supplied by M/s. L T IDPL to the appellant were cleared on the basis of invoices on which the Central Excise duty was charged on the appellant. It is also a matter of record that the goods supplied by M/s. L T IDPL were fully covered by construction under international competitive bidding and same were exempted from payment of Central Excise duty by virtue of Central Excise notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim is hit by bar of unjust enrichment as rightly held by the adjudicating authority. I also find that the ratio of the above discussed decision of the Supreme Court dated 29.08.2016, overrides all the referred case laws by the Appellant in their appeal memo which have no further applicability in instant case. 3. It can be seen that the learned Commissioner (Appeals) rejected the refund claims of the appellant on the ground that it failed to discharge the burden that the incidence of duty had not been passed by it to some other person or buyers and, therefore, the appellant had not been able to pass the test of unjust enrichment. 4. The learned advocate appearing for the appellant submitted that the appellant was entitled for refund under section 11B of the Central Excise Act, 1944 as it had paid the Central Excise duty to the Government exchequer but by virtue of Notification No. 12/2012, it was entitled for exemption on the project goods procured by it from M/s. L T IDPL. It is the contention of the learned advocate that it had submitted a Chartered Accountant certificate to the concerned authorities supporting the fact that the burden of duty had not been passed on to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into account the excise exemption and in case any excise duty is paid (when exemption is available), the same cannot be passed on to the buyer as the cost of project is already fixed and nothing can be changed, over the project cost. 6. We have also heard learned Authorized representative of the Department who has supported the findings recorded in the order of the learned Commissioner (Appeals). 7. After considering the rival submissions and after perusal of the record of the appeal, it is clear that the amount of Central excise duty for which the refund claims have been filed by the appellant, was infact not payable by the appellant in view of the notification No. 12/2012-CE dated 17.3.2012 since all the conditions attached to this notification was fulfilled by the appellant. Thus, the project goods received by the appellant from M/s. L T(IDPL) should have been at Nil rate of Central Excise duty, but the appellant received goods from L T(IDPL) on which Central Excise duty was paid by the appellant. As a consequence, if any amount of Central Excise duty has been paid by the appellant, which is otherwise not payable then it was certainly entitled for refund of such amount ..... X X X X Extracts X X X X X X X X Extracts X X X X
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