ORDER
T.K. Jayaraman, Member (T)
1. This is an appeal against the Order-in-Appeal No. 112/2004 (T) CE dated 28.12.2004, passed by the Commissioner of Customs & Central Excise, Guntur.
2. The appellants entered into an agreement with Ahmedabad Municipal Corporation for the work of laying down pipeline under the Ahmedabad City Water Distribution Project for delivery of water fit for human consumption from Water Treatment Plant to Water Storage Tanks. According to the agreement, taxes and duties are to be borne by the appellants. However in terms of the Notification No. 6/2002-CE dated 01.3.2002, complete exemption from duty is available to the pipes made for delivery for water fit for human consumption from its source to the Water Treatment Plant and from Water Treatment Plant to the Storage facility subject to the conditions which require a certificate to be issued by the Collector / District Magistrate / Deputy Commissioner of the District in which the plant is located to the effect that such goods are cleared for the intended use. The appellants procured the pipes for execution of the Project from the manufacturer, M/s Lanco Kalahasti Castings Ltd., Kolkata (for short LKCL). The manufacturer paid the duty on the pipes cleared to the appellants. In turn the appellants had borne the Excise duty, which is shown in the invoices. Since as per the contract with the Ahmedabad Municipal Corporation, the duty is payable only by the appellants, the burden of duty was not passed on to the Ahmedabad Municipal Corporation. Since the goods are entitled for complete exemption vide Notification No. 6/2002, the appellants filed a refund claim to the Jurisdictional Officer for a sum of Rs. 45,34,421/-. The Deputy Commissioner of Central Excise rejected the refund claim on the ground that the duty has already been recovered from the Ahmedabad Municipal Corporation. The Commissioner (Appeals) confirmed the order of the Deputy Commissioner. Aggrieved over the Commissioner’s (Appeals) order, the appellants have come before the Tribunal for relief.
3. Shri G. Shivadass, learned Advocate appeared on behalf of the appellants and Shri R.V. Ramakrishnappa, learned JDR appeared on behalf of the Revenue.
4. The learned Advocate urged the following points :-
(i) There is no doubt that the goods in question are exempted. It is not correct to reject the refund claim on the ground that the exemption is not claimed by the manufacturer. The Tribunal in the case of CCE v. Indian Rayon & Inds. Ltd. has held that even if the manufacturer does not claim the exemption, the buyer will still be entitled to claim the benefit by way of refund claim.
(ii) The exemption is in respect of the goods. As long as the notification does not contain a condition that the exemption can be claimed only by the manufacturer and not by the third party there cannot be any restriction.
(iii) The refund claim is not hit by the unjust enrichment because the appellants had borne the duty as can be seen from all the documents. The Ahmedabad Municipal Corporation issued a certificate for availing the exemption. The Collector of Ahmedahad District has also issued a certificate to the effect that the goods can be procured without duty. The Chartered Accountant has also certified that the appellants had not realised the excise duty from Ahmedabad Municipal Corporation,
(iv) The appellants had shown the amount as ‘Excise duty receivable’ in their General Ledger which is also certified by the Chartered Accountant.
(v) The learned Advocate relied on the following decisions :-
(a) Jaipur Syntex Ltd. v. CCE
(b) Advani Oerlikon Ltd. v. CCE
(c) Superintending Engineer, TNEB v. CCE
(d) Toyota Kirloskar Motor Ltd. v. CCE F.O. No. 308/2005 dated 28.2.2005 (CESTAT, Bangalore)
5. The learned SDR re-iterated the points in the Order-in-Appeal.
6. We have gone through the submissions made by both the sides and the records of the case carefully. The Commissioner (Appeals) has upheld the order of the Original authority mainly on the ground of the unjust enrichment. He has stated that the assumption of the Department that the appellants have passed on the burden of Excise duty to the Ahmedabad Municipal Corporation appears to be sustainable and correct in law. The appellant has produced the agreement with the Municipal Corporation. As per the agreement, the excise duty has to be borne by the contractor who is the appellants. The Collector of Ahmadabad District has issued a certificate dated 31.3.2003 to the effect that the pipes and fittings procured by the appellants for the Project are entitled for the benefit of the exemption. This certificate has been issued based on the certificate issued by the Ahmedabad Municipal Corporation. After having issued the certificates, it will be difficult to hold that the Ahmedabad Municipal Corporation has borne the duty. Such a conclusion on the part of the Appellate authority is ridiculous, to say the least. The appellants have produced the details of commercial invoices relating to the purchase of pipes from M/s LKCL, Kolkata, the manufacturer of the pipes. The details indicate all the duty payment. Therefore there is enough evidence that the appellants on purchase of pipes had borne the duty burden. Apart from the documents, the Chartered Accountant has certified that the appellants had not passed on the burden of duty incidence to the awarder of the contractor, i.e. Ahmedabad Municipal Corporation. There is also an affidavit by the Company Secretary. Moreover, the amount claimed as refund is shown as duty receivable. If the Order-in-Appeal is to be sustained, then Revenue should be in a position to establish that all the documents produced and shown by the appellants are fake. In the absence of such an action, there is no ground to reject the overwhelming documentary evidence produced by the appellants. The case laws cited by the learned Advocate strengthen the view that it is not necessary that the refund claim should be filed only by the manufacturer. The person who has borne the duty burden can also claim the refund. There is absolutely no restriction in that. There is also no doubt that the goods are exempted from duty as the conditions of the notification have been fulfilled. In view of the above observations, the Order-in-Appeal has no merit. Hence we allow the appeal with consequential relief.
(Pronounced in the open court on 08.09.2005)