Customs, Excise and Gold Tribunal - Delhi
Commissioner Of Central Excise, Bhopal vs Pcc Pole Factory on 2 May, 2002
Equivalent citations: 2002ECR784(TRI.-DELHI), 2002(143)ELT649(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. The Madhya Pradesh Electricity Board (MPEB) has a unit at Pandhurna manufacturing PCC poles for their own consumption. The PCC poles which the appellants manufacture in that unit are cleared on payment of duty of excise and taken to various sites where the poles are installed as part of their electrification projects. The said unit happened to pay excess duty amounting to Rs. 58,125/- on certain quantity of poles cleared in the above manner during October 1987 to January 1990. They filed a refund claim for this amount on 25-6-93. The jurisdictional Assistant Commissioner found the refund claim to be within the statutory period of limitation of six months from the date of finalisation of the duty assessment and allowed the claim but ordered crediting of the amount to the Consumer Welfare Fund on the ground that the incidence of duty had been passed on by the claimant to the MPEB, which was held to be a distinct and different legal entity. The department preferred appeal to the Commissioner (Appeals), wherein it contended that the refund claim was time-barred and therefore the adjudicating authority ought not to have examined the claim on merits. The lower appellate authority rejected the plea of time-bar and examined the merits of the refund claim. In doing so, that authority held that the bar of unjust enrichment was not applicable to the claim inasmuch as the goods were not cleared to "any other person". In other words, the Commissioner (Appeals) held that the goods were cleared by the MPEB to themselves. He further ordered the refund to be made to the claimant. In the present appeal filed by the department against the order of the Commissioner (Appeals), the only ground is as under :-
"It is clear from the Order-in-Original that the supplier i.e. the party has its own Central Excise Registration and is legally distinct from MPEB, who is the buyer. No evidence is available on record to substantiate the Commissioner (Appeals)'s conclusion that M/s. PCC Pole Factory is part of MPEB. Incidence of duty has been passed on by M/s. PCC Pole Factory to the buyer MPEB, and therefore the unjust enrichment clause is applicable and the refund sanctioned by Assistant Commissioner has been correctly ordered to be credited to the Consumer Welfare Fund."
Ld. JDR has reiterated the above ground. Ld. Counsel Sh. L.P Asthana for the respondent submits that there was no sale of the goods when they were cleared from the PCC Pole Factory to MPEB's project sites and, for that reason, there was no buyer for the goods. Ld. Counsel argues that, there being no buyer for the goods in question, the department was not entitled to the benefit of the presumption under Section 12B of the Central Excise Act. The goods cleared by MPEB from their PCC pole factory unit on payment of duty were consumed by the Board at their project sites. There was no question of incidence of duty passing on to "any other person" in terms of Section 11B of the Act. This argument of the Counsel has not been successfully contested.
2. Section 12B referred to by the Counsel reads thus :--
"Presumption that the incidence of duty has been passed on to the buyer. - Every person who has paid the duty of excise on any goods under this Act shall, unless the contrary is proved by him, be deemed to have passed on the full incidence of such duty to the buyer of such goods."
The above provision has created a presumption in favour of the Revenue, which, as rightly pointed out by Id. advocate, the Revenue can invoke by discharging its initial burden of proving that there is a "buyer" for the goods. There can be a buyer only if a sale has taken place. In the present case, no sale of PCC poles has been shown to have taken place. Hence the Revenue is not entitled to the presumption under Section 12B. Further, it is undisputed that MPEB was clearing the goods from its factory to its own project sites for consumption. There was no clearance of the goods to "any other person" and therefore the question of incidence of duty passing on to "any other person" under Section 11B did not arise. The admissibility of the refund claim is otherwise not in question. Therefore, the claim, not hit by any bar of unjust enrichment under Section 11B, has to be allowed in absolute terms as rightly held by the lower appellate authority. The order of the Commissioner (Appeals) is, therefore, sustained and the present appeal is rejected.