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TMI Blog2024 (3) TMI 195X X X X Extracts X X X X X X X X Extracts X X X X ..... g 8525 2019 with 15% BCD and 16% CVD, the appellants were directed to pay differential duty of Rs.78,71,876/- and Rs.1,88,14,175/- which were paid under protest. The issue was further investigated by the Revenue vide Order-in-Original No. 8/2005 held that the goods are rightly classifiable under Chapter Heading 8525 2019 and the benefit of Notification No. 21/2002 Cus. dated 1.3.2002 was not available to the appellant. Against this order, the appellant filed an appeal before the Tribunal and the Tribunal vide Final Order No. 937/2006 dated 17.05.2006 held that the goods are classifiable under Customs Tariff Heading 8525 2017 and they are also eligible for the benefit of the Notification No.21/2002 dated 01.03.2002 and this order was accepted by the Department. (i) In respect of Appeal No. C/25464/2013, the appellant was eligible for a refund of Rs.3,67,55,675/-. On filing the refund claim, the original authority sanctioned the refund of Rs.25,00,000/- and Rs.3,22,55,665/- was ordered to be credited to the Consumer Welfare Fund under Section 27(2) on the ground that the claim was hit by the doctrine of unjust enrichment and rejected refund of Rs.20,00,000/- as time barred as they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all other payments including taxes are to be borne by the appellant irrespective of the variations due to change in the tax structure and therefore, the question of denying the refund on the ground that they have passed on their duties does not arise. The appellant also relies on the following decisions. * Gopikrishna Processors Private Limited versus CCE Jalandhar 2007 210 ELT 529 (TRI-Delhi) * CCE Guntur versus Empee Sugar and Chemicals Limited 2007(211) ELT 293 (TRI-Bang) * CCE Bangalore versus Karnataka State Agro Corn Products Limited 2008(9) (STR) 597 (KAR) 4. The learned Authorised Representative on behalf of the Revenue reiterating the findings of the Commissioner (Appeals) submits that the refunds claimed by the appellant is not shown as receivables in the books of accounts and was charged to the profit and loss account as expenses and therefore, the claim is hit by the doctrine of unjust enrichment. It is further stated that in the case of Cement Corporation of India Limited vs. Commissioner of Central Excise: Rohtak 2007 (219) ELT 329 (Tri-Delhi), wherein it is held that, the submission that a state undertaking does not come within the scheme of unjust enrichment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the observations of the Commissioner (Appeals) in the impugned order that the appellant has not preferred any appeal before the Tribunal against the Order-in-original 36/2004 is factually incorrect and accordingly, denial of refund of Rs.20,00,000/- cannot be sustained. 8. With regard to the refund of the differential duty amount, the Commissioner (Appeals) in the impugned order had observed that : "As contended by the appellants that in para 10.2(b) of the Purchase Order dated 5.11.2003 of M/s. BSNL to the appellants for the supply of WLL CDMA 200 IX integrated fixed wireless terminals stipulates that "any increase in taxes and other statutory duties/levies after the expiry of the delivery date shall be to the contractor's account. However, benefit of any decrease in these taxes/duties shall be passed on to the purchaser by the supplier" is factually correct. Further, it is on record that prior to and subsequent to issue of Order-in-Original No.8/2005 dated 9.6.2005, the unit price of the integrated fixed wireless terminal remained constant i.e. Rs. 6648.99. In view of the above, I am in agreement with the appellant's contention that they have not passed on the duty burden t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 7. The argument is that the State is different from State undertakings. It cannot be forgotten that the State Government controls the Government undertakings in the matter of management, finance, administration, etc. of those governmental undertakings. Policies or programmes are also, to a certain extent, evolved by the State Government. State Government has an effective control over these undertakings and there is pervasive control by the State over them. Unless the Department is able to show that the Government undertakings are totally different from all angles, it is not possible to accept the argument of 'unjust enrichment' on the part of the State undertakings. State and the State undertakings represent the people of the country. The judgment of the Supreme Court referred to above would definitely apply in the matter 'unjust enrichment' even to governmental undertakings as has been rightly ruled by the Tribunal. 8. We reject this appeal by answering the questions of law against the Department". 10. We find force in the submissions of the appellant as the Hon'ble Apex Court in the case of Mafatlal Industries Ltd. Vs. Union of India: 1997 (89) ELT (247)-SC has held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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