ORDER
C.N.B. Nair, Member (T)
1. The appellants manufactured and supplied “earth pipe and cross arm” to Kerala State Electricity Board on payment of central excise duty. Subsequently, they claimed refund of the duty paid on the ground that items in question were not excisable. While the appellants succeeded on the merits of the case, the original authority held that the refund amount is required to be deposited into the Consumer Welfare Fund Under Section 11B (2) and Section 12C of the Central Excise Act, 1944. Under the impugned order, Commissioner (Appeals) confirmed that order. The reason for denying refund amount to the appellants who had made the original payment of duty is that the appellants had passed on the duty liability to their buyer and it would result in unjust enrichment, in case the duty amount originally paid was refunded to the appellants.
2. Both Revenue and the assessee are in appeal against the order.
3. The contention taken by the Revenue is that they have filed an appeal against the order holding the items not to be excisable. However, it is seen that this issue remains covered in favour of the assessee by the order of this Tribunal in the case of Electrical Hardware Industries v. CCE., Cochin – 2000 (117) E.L.T. 53. Therefore, there is no merit in the Revenue’s appeal Accordingly, their Appeal No. E/1314/2000 fails and is rejected.
4. Contention taken by the assessee against the finding of unjust enrichment is that the assessee had actually not passed on the duty liability to their buyers. It is pointed out that the assessees was one of the many suppliers of the goods in question to Kerala State Electricity Board. These included exempted and non-exempted manufacture. It has been explained that tender floated by the Board had invited quotations in proforma A, which provided for quoting the price with split-up details of ex-works price, packing and forwarding, excise duty, sales tax, freight etc. The appellants had quoted a price of Rs. 214.80 on the basis of ex-works price Rs. 195.24, excise duty Rs. 9.6, sales tax 8.7, freight charge 1.3 etc. However, since other suppliers had quoted prices without the element of excise duty, Board authorities approved a common price without making any provision for excise duty. The price so fixed was at Rs. 184.60 per set. It is the submission of the appellant that it would be clear from this pricing that the appellants claim for excise duty was not accepted at all and that the price approved did not include any provision for excise duty. The appellants, therefore, contend that the ground of unjust enrichment is not attracted in the present case. They have also relied on the decision of the Tribunal in the case of Cimmco Ltd. v. CCE, Jaipur – 1999 (107) E.L.T. 246 in support of their contention.
5. We have perused the records and heard the leaned SDR. It is clear from the quotation filed by the appellants and subsequent price approval that the approved price did not make any provision for excise duty. In view of this, the appellant’s claim that the bar of unjust enrichment is not attracted in the present case merits acceptance. The appeals of the assessee are allowed with consequential relief. The amount held to be refundable shall be refunded to the appellants instead of depositing it in the Consumer Welfare Fund.