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TMI Blog2024 (12) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government of Rajasthan having 51% stake. The entire lignite mined by appellant was supplied exclusively to Raj West Power Ltd., presently known as JSW Energy (Barmer) Limited [JSWEBL] to be used in generation of electricity, in terms of Fuel Supply Agreement dated 19.01.2011. The Government of Rajasthan had entered into an Implementation Agreement (IA) dated 29.05.2006 with JSWEBL. The price of the mined lignite to be supplied by the appellant to JSWEBL was to be fixed by the Rajasthan Electricity Regulatory Commission [RERC], a State Regulatory Authority formed under the Electricity Act, 2003. 3. Under the provisions of RERC Tariff Regulations, 2009, the appellant filed a petition for determination of annual transfer price of lignite, however, RERC determined the price on ad hoc basis vide various interim orders for the period October 2011 to March, 2016 and sample interim orders from April 2016 to June 2017. These ad hoc prices were determined by RERC pending the final determination of the price. As a result, the appellant approached the excise department requesting for provisional assessment of mined lignite under rule 7 of the Central Excise Rules, 2002. As per the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he financial year 2011-2012 to 2017-18, ER-I Returns, Affidavit on behalf of the company etc., to establish that there was no unjust enrichment. 7. The adjudicating authority passed the sanctioned order dated 04.09.2019 in favour of the appellant observing that the principle of unjust enrichment is not applicable. The department preferred an appeal before the Commissioner (Appeals) and the appellant filed the cross-objection to the appeal. By the impugned order, the Commissioner (Appeals) rejected the refund claim on the ground that the same is hit by the clause of unjust enrichment as the amount has been shown as expenditure in the Profit & Loss Account, which means that the incidence of duty has been passed on to the customers. Being aggrieved, the appellant has filed the present appeal before this Tribunal. 8. Heard Shri B.L.Narasimhan, learned counsel assisted by Ms. Sukriti Das and Shri S.C. Vaidyanathan, Advocates for the Appellant and Shri Shyam Prasad, learned Special Counsel for the Department. Submissions of the Appellant i. The amount deposited during the pendency of the adjudication proceedings or investigation is in the nature of deposit which cannot be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii. Chambal Fertilizers and Chemicals Limited ; iii. Commissioner of Customs, ACC Import Commissionerate, New Customs House, New Delhi vs. UT Electronics Private Limited, Final Order Nos. 51730-51732/2019 dated 24.12.2019 (CESTAT New Delhi); iv. Shyam Coach Engineers vs. Commissioner of Central Excise & CGST, Jaipur Final Order No.50011/2024 dated 04.01.2024; v. Commissioner of Central Excise, Pune vs. Sandvik Asia Limited, 2015(323) ELT 431-Bombay High Court; vi. Man Trucks & Bus India Private Limited vs. Commissioner of Customs, GST, Central Excise, Indore, 2021 (375) ELT 590 (Tribunal-Delhi) iv. The bar of unjust enrichment is not applicable when the price is fixed by the statutory authority. The appellant, therefore, had no liberty either to alter or modify the price fixed by RERC. In the present case, admittedly, RERC was the recognised authority for the determination of the price who had fixed the same on interim basis. The case of the appellant is that they had supplied the entire mined lignite to JSWEBL only under the invoices on payment of excise duty. The learned counsel referred to the observations made in the final order dated 12.09.2018 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC&ST, Bangalore, 2016 (344) ELT 241 (Tri.-Bang.) vii. For the period April 2016 to June 2017, the appellant had deposited the amount of Rs.40,27,76,906/- 'under protest' in the absence of any show cause notice and hence is only a deposit which does not partake the character of duty in terms of the provisions of section 11B. Submissions of the Revenue 9. The learned Special Counsel for the revenue reiterated the findings as arrived in the impugned order and submitted that each refund claim filed before the authority shall have to pass the test of unjust enrichment and relied on the decision of the Tribunal in Mahindra Engineering and Chemical Products Ltd. vs. Commissioner of Central Excise, Pune-I [2019(368) ELT 84 (Tri-Mumbai)] The learned Special Counsel also relied on the short order of the Apex Court in Parle International Ltd. whereby the findings of the Gujrat High Court that the doctrine of principle of unjust enrichment is applicable to such deposit was set aside relying on the decision in Commissioner of Central Excise, Mumbai vs. Allied Photographic India Ltd. and Sehkari Khand Udyog Mandal Ltd. He further submitted that even if a duty has been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucknow vs. Eveready India Ltd. In all these decisions, the main principle laid down is that any amount deposited during the pendency of adjudication or investigation is in the nature of deposit and therefore, cannot be considered to be towards payment of duty and consequently the principles of unjust enrichment would not apply in the event of claiming refund of such deposit. The decision in Chambal Fertilizers being rendered by Principal Bench and being latest in point of time is binding on us and we, therefore, hold the issue on merits in favour of the appellant. 12. The appellant has raised other contentions in support of his arguments on merits which we have referred to in the earlier paragraphs. We find that these contentions have also been considered by the Principal Bench in the case of Chambal Fertilizers, supra and have been decided in favour of the assessee. On the point that the amount deposited was accounted as expenditure in the Profit & Loss Account, the Bench observed that the method of accounting followed does not impact the admissibility of refund and cannot be made a basis to hold that the incidence of duty had been passed. Reference was made to the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the burden on the revenue to prove the recovery of extra duty collected from the customers by producing evidence but as the revenue failed to advance any evidence to rebut the Certificate, the allegations of unjust enrichment cannot be upheld. In the circumstances, it was observed that the Certificate given by the Chartered Accountant is good evidence to show that the disputed duty amount had not been collected from the customers and the said Certificate could not have been sidelined without production of any evidence to show that the Certificates were wrong. Similar view has been taken by the Tribunal consisting of the same Members in Principal Commissioner of Customs, New Delhi vs. Telicare Network India Pvt Ltd. [Final Order No. 50390/2023 dated 24.03.2023 in C/51677/2022] where the Revenue vehemently argued that the Chartered Accountant Certificate cannot be relied upon and the Bench noted that on a querry from the Bench he could not produce any evidence whatsoever to either establish the fact that duty had been passed on by the respondent or to show that the Chartered Accountant Certificate was incorrect. Hence the opinion of the Chartered Accountant in the form of Cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular relied upon, has sought refund of the amount by calling it "pre-deposit", when it was not deposited by way of pre-deposit but under protest, even before any demand was raised and while the petitioner was still being investigated against. Such deposits under protest, to ease the rigors which the Tax Authorities otherwise are entitled to impose, are not unknown and judicial notice has been taken thereof. However as long as the amount deposited is under protest and in which protest, as held in Mafatial Industries Ltd. supra no grounds are required to be stated, no right thereto accrues in favour of the depositee till the depositee is held entitled in law thereto. Thus, the wrong nomenclature given by the petitioner to the deposit would not be a ground for allowing the respondents State to unduly enrich themselves. A Division Bench of this, Court in Indglonal Investment and Finance Ltd. v. Income Tax Officer, (2012) 343 ITR 44 has held that refund provisions should be interpreted in a reasonable and practical manner and when warranted, liberally in favour of the assessee." 16. The learned Special Counsel for the revenue has cited several decisions in support of his submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the issue involved was whether the assessee is entitled to claim deduction under section 43B of the Income Tax Act, 1961 in respect of the excise duty paid in advance in the Personal Ledger Account and it was concluded that the nature of deposits made in PLA are also central excise duty for the purpose of section 43B. Thereafter, the main thrust of the decision was to distinguish between the payment of pre-deposit as per the direction of the Court and the payment of duty. In fact, the decisions relied on by the learned Counsel for the appellant were not even considered on the ground that they were in relation to refund of pre-deposit. Hence no reliance can be placed on the said decision. 18. The decision in Collector of Central Excise Chandigarh vs. Doaba Cooperative Sugar Mills [1988 (37) ELT 478 (S.C.)] is distinguishable on facts and hence is not applicable. 19. The reliance placed by the learned Special Counsel on JCT Ltd vs. Commissioner of Central Excise [2004(163)ELT 467(Tri.Del.)] is completely misplaced as the doctrine of unjust enrichment was considered in the general sense and the price of the goods was inclusive of duty, which meant that the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X
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