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TMI Blog2008 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... st seven of these appeals are by the Tamil Nadu Electricity Board (TNEB, for short) against rejection of refund claims. TNEB had filed refund claims in respect of various amounts of duty of excise paid on pre-stressed cement concrete poles (PCC poles, for short) manufactured and captively used during different periods during, which Rules 233B of the Central Excise Rules, 1944 was in force. Some of these claims were rejected as time-barred while other claims were dismissed on the ground of unjust enrichment. Even in those cases where the refund claims were dismissed as time-barred, the bar of unjust enrichment was also applied. In all cases, the decision of the original authority was sustained by the first appellate authority. Essential part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund denied as time barred 5. E/972/04 - TNEB, Coimbatore EDC O/A 69/2004(SCN) TRY II Dated 25-03-2004 0/0 153/2003 Dated 19-6-2003 6-11-1990 to 30-3-1994 5,14,055/- O/O O/A accepts duty payment under protest as seen in TR-6 challan; yet, refund denied as time barred 6. E/1274/04 - TNEB Udumalpet EDC O/A 232/2004-CE Dated 8-7-2004 O/O 85/2003(AC) (Pollachi) Dated 23-12-2003 1991-92 8,51,488/- The O/O sanctioned Refund claim, but transferred and credited to consumer welfare fund; Presumed that duty incidence has not been passed on — rejected on unjust enrichment. 7. E/1324/04 - TNEB Udumalpet EDC O/A251 /2004-CE Dated 5-8-2004 O/O 04/2004(AC) (Pollachi) Dated 29-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein the assessee claimed the benefit of Notification No. 33/9(o)-C.E. (N.T.) and also claimed the benefit of MODVAT credit, were held to be amounting to "protest" for purposes of Rule 233B of the Central Excise Rules, 1944. The Hon'ble High Court held that Rule 233B could not be construed in a narrow, pedantic or hypertechnical manner. It was held that, under the said rule, there should only be substantive protest in writing. It is argued by the learned Consultant that the words "UNDER PROTEST" stamped on the TR-6 challan satisfied this essential requirement. Reliance has also been placed on the Apex Court's judgment in Mafatlal Industries Ltd. v. Union of India [1997 (89) E.L.T. 247 (S.C.)]. It is pointed out that, in para 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. In two cases (vide S. Nos. 6 7 of synopsis), refund was sanctioned but the amount was transferred to the Consumer Welfare Fund. In other words, the refund claim was held to be barred by unjust enrichment. In these cases, TNEB has raised a ground which appears to be appealing. It is their case that the duty paid on PCC poles, which were used for public street lighting purposes or for providing domestic power connection, was shown as 'receivable' in the balance sheet as certified by the Chartered Accountant and that this amount was never factored into the costs of the aforesaid activities recovered from the consumers. It is submitted by the learned Consultant that these aspects have been considered in detail by this Bench in Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 5. The remaining appeal (E/180/2005) filed by the Revenue is against an order of the Commissioner (Appeals) granting a similar refund of duty to TNEB without set off against a demand of duty raised in another Division of the Commissionerate. According to the appellant, a demand raised on TNEB under lawful adjudication of a dispute in one Division of the Commissionerate is enforceable by way of adjustment, under Section 11 of the Central Excise Act, of a refund granted to them in another Division of the same Commissionerate. This case of the Revenue has been reiterated by the learned JDR. It is contested by the learned Consultant by submitting that the assessees are different in the two Divisions of the Commissionerate, though both ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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