SUPERINTENDING ENGINEER, Vs. COMMR. OF C. EX.

JUDGEMENT

(1.) The appellant, Tamil Nadu Electricity Board, is aggrieved with the Order -in -Appeal No. 44/03 (MI), dated 8 -4 -2003 by which the Commissioner has held that refund claimed by the appellant is available. However, he has held that the refund amounts are required to be transferred to the Consumer Welfare Fund as appellants have not discharged the burden in showing that excise duty has not been passed on to the ultimate customer.

(2.) Appellants contend in this appeal that rates of tariff had been fixed by the Government of Tamil Nadu much earlier to the duty paid in this case pertaining to refund of duty paid on naphtha received by them during the period 30 -1 -2002 to 19 -10 -2002 and there is no dispute pertaining to claim of exemption Notification No. 3/2001 as amended by Notification No. 4/2002. It is stated that while arriving at the rate of duty, they had not taken into consideration the amounts which are required to be paid under the said notification as naphtha was exempt from payment of duty under aforesaid notification. The manufacturer/supplier of the naphtha had paid the duty under a mistaken impression that the product was liable to duty. The duty amount which had been collected is not duty as per law and the appellant sought for reimbursement of the same from the department. It is stated that there was no question of unjust enrichment in the matter as duty collected was not passed on to the consumer. They rely on their own case reported in 1999 (106) E.L.T. 499 wherein the Bench after examining the refund claims and the lower authority's orders held as follows : -

(3.) It was stated by the appellant before the lower appellate authority and the adjudicating authority that the power generated by their unit, Basin Bridge Gas Turbine Power Station, i.e. BBGTPS is only fed into the State grid which was distributed to the various customers. BBGTPS does not collect tariff from the consumers and, therefore, question of their getting unjustly enrichment does not arise. The power tariff was revised during 5 -12 -2001 and the Tamil Nadu Government alone is responsible for such revision and they had not made any further revisions till the date of the hearing of the show cause notices. The appellants referred to the finding recorded in the case of Metro Tyres Ltd. - 1995 (80) E.L.T. 410 (T) wherein the very aspect pertaining to unjust enrichment was discussed and approved in favour of the appellants. The relevant paragraph of the said judgment which is noted in the memorandum of appeal is reproduced herein below : -