Custom, Excise & Service Tax Tribunal
Maharashtra State Power Generation Co. ... vs Commissioner Of Customs (Import) ... on 23 June, 2011
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/1052/2009-Mum. (Arising out of Order-in-Appeal No. 235/2009/MCH/CRARS/09 dated 07/09/2009 passed by the Commissioner of Customs (Appeals) Mumbai-I) For approval and signature: Honble Mr. S.K. Gaule , Member (Technical) ============================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
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Maharashtra State Power Generation Co. Ltd.
:
Appellant
VS
Commissioner of Customs (Import) Mumbai
Respondent
Appearance
Shri Durgenesh Nadkarni, Advocate for Appellant
Shri B.P. Pareira, JDR Authorized Representative
CORAM:
Mr. S.K. Gaule , Member (Technical)
Date of hearing : 23/06/2011
Date of decision :
ORDER NO.
Heard both sides..
2 The appellant filed this appeal against Order-in-Appeal No. 235/2009/MCH/CRARS/09 dated 07/09/2009 whereby Commissioner (Appeals) has upheld the lower adjudicating authorities order rejecting the refund claim of the appellant.
3. Briefly stated facts of the case are that the appellant filed a Bill of Entry for import of Wheel Loader and classified the same under Chapter 87 subsequently the Bill of Entry was reassessed and the goods were classified under Chapter 84. Thereby the appellant filed refund claim for Rs.1,90,585/- for excess duty paid. The lower adjudicating authority rejected the refund claim on the ground that the appellant failed to prove that they have not passed on the incidence of the duty. The appellant challenged the said order. The Ld. Commissioner (Appeals) upheld the lower authoritys order and dismissed the appeal of the appellant. Hence the present appeal.
4. The contention of the appellant is that they are Government of Maharashtra State undertaking and they have not sold the capital goods to any of their customer. They will be utilizing the capital goods for power generation and the said electricity generator sold to another Government company i.e. M/s. Maharashtra State Power Distribution Co. Ltd. through Governments service Company i.e. M/s. Maharashtra State Power Transmission Co. Ltd. and the electricity sold is not dutiable under Central Excise Tariff Act. Therefore, question that incidence of duty has been passed on does not arise. In support of their contention they have cited the decision of Honble High Court of Kartanaka in the case of C.C.E., Bangalore-II Vs. Karnataka State Agro Corn Products Ltd. reported in 2006 (202) E.L.T. 47 (Kar.) and Honble High Court of Karnataka decision in the case of Union of India Vs. Pharmacia India (P) Ltd. reported in 2010 (256) E.L.T. 685 (Kar.) and this Tribunal decision in the case of Golden Iron & Steel Forgings Vs. Commr. of Cus. Mumbai reported in 2003 (157) E.L.T. 650 (Tri.Del.).
5. The Ld. JDR reiterated the findings of the Ld. Commissioner.
6. I have carefully gone through the submissions and perused the records. Undisputedly the appellants are entitled for refund claim on merits. The refund has been denied on the question of unjust enrichment alone. The appellant is a State Government Undertaking and the goods imported are capital goods required for power generation. The Tribunal in the case of Golden Iron & Steel Forgings (supra) held that excess Customs duty paid on imported capital goods ultimately consumed by the importer, bar of unjust enrichment will not be applicable. The Honble High Court in the case of Karnataka State Agro Corn Products Ltd. (supra) while deciding the issue whether question of unjust enrichment is applicable to State undertakings held that 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 Honble High Court of Karnataka in the case of Pharmacia India (P) Ltd. (supra) the machinery which was imported by the assessee was for installation at its factory premises to be used for purpose of manufacture as captive consumption and not for further sale of the same, in which event, there would have been no occasion to collect the duty from its customer such being the case, the Tribunal was right in holding that refund claim was not hit by the rule of unjust enrichment. The above case laws apply to all forms of the case.
8. In view of the above, the Ld. Commissioner (Appeal)s order is not sustainable in law, hence set aside. Appeal allowed with consequential relief.
(Pronounced in Court on .. )
(S.K. Gaule)
Member (Technical)
Sm
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