GRASIM INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) THIS appeal is directed against the Order -in -Appeal No. 10/2000 (M -III)(D), dated 21 -9 -2000 passed by the Commissioner of Central Excise (Appeals), Chennai by which the Commissioner has allowed the appeal filed by the Department holding that the respondents have not substantiated their claim with evidence to prove that the duty paid has not been loaded on to their products and hence the order of the lower authority granting refund of Rs. 27,66,970/ - is not sustainable in law.

(2.) SHRI Saravanan, learned Counsel for the appellants referring to the grounds taken in their appeal submitted that the doctrine of unjust enrichment is not applicable to the present case. He has pleaded that the ESPs were installed for the purpose of pollution control at the 25 MW power generation station at Nagda (MP) and the power generated is for captive consumption. He has further pleaded that the reliance of the Commissioner in the decision of the Hon'ble Apex Court in the case of UOI v. Solar Pesticides reported in 2000 (116) E.L.T. 401 (S.C.) cannot help the department as the case related to input used for production of final products and not capital goods. He has further pleaded that the present impugned order is beyond the scope of the show cause notice and also the remand order of the Tribunal. He has also submitted that the Section 11B of the CE Act, has no nexus with the provisions of the Income -tax Act and there was no necessity for the Commissioner (Appeals) to have imported the provisions of the IT Act into the present dispute as the dispute is whether the appellants are eligible for refund in the facts of the present case where they have paid duty in excess of what was required to have been paid by law. He, therefore, prayed for allowing the appeal.

(3.) SHRI A. Jayachandran, learned JDR appearing for the Revenue, reiterated the view taken by the Commissioner (Appeals). He has also referred to the para -wise comments on the grounds of appeal, submitted to him by the Additional Commissioner (Judicial) of the Central Excise, Chennai -III, a copy of which is placed in the file. It is stated therein that the Commissioner (Appeals) has taken into consideration the facts on record and the grounds put forth by the department and the impugned order is correct in law. It is also stated therein that as per Section 11B while sanctioning refund, due care has to be taken whether the duty burden has not been passed on to the customers and in the instant case, the assessee has not produced any evidence to show that the duty incidence has hot been passed on to the customers and therefore, in terms of Section 12B, the burden cast on the assessee has not been discharged by him and hence the order passed by the Commissioner (Appeals) is in order. It is also stated that provisions of income -tax can also be applied as it is imperative to study if refund will result in undue/double benefit to the assessee and the said undue benefit need not be within the Central Excise Act and can be under other statutes as well. The learned JDR prayed for rejection of the appeal.