Full Judgment
2. Shri R.D. Negi, Ld. SDR submitted that the respondents manufacture structurals, which were used in the manufacture of transmission towers; that the Commissioner (Appeals) under Order in Appeal No. 483/93 dated 28.5.93 held that cutting, welding, punching making holes etc. did not amount to manufacture; that their Appeal was also rejected by the Tribunal vide Final Order No. 484 to 488/99 B1 dated 28.4.99 against which the Appeal has been filed before the Supreme Court; that the refund claims were filed by the Electricity Board; that the Assistant Commissioner sanctioned the refund claim but directed the same to be credited to the consumer welfare fund in absence of any specific documentary or other evidence to establish that the burden of duty of excise had not been passed on to any person; that however on Appeal the Commissioner (Appeals) under the impugned Order set aside the adjudication orders holding that the question of unjust enrichment did not arise as the goods in question were not sold as such and they were captively consumed, relying upon the decision of the High Court of Bombay in the case of Solar Pesticides (India) Ltd. v. UOI .The Ld. DR, further, submitted that the Supreme Court, on Appeal preferred by the Revenue, has set aside the judgment of the Bombay High Court in the case of UOI v. Solar Pesticide (India) Ltd. holding that to claim refund of duty, it is immaterial whether the goods imported are used by the importers himself and the duty thereon passed on to the purchasers of the finished product or that the imported goods are sold as such with the insistence of the tax being passed on to the buyers.
3. On the other hand, Shri LP. Asthana, Ld. Advocate, submitted that in his affidavit the Additional Executive Engineer mentioned that the duty which was paid in respect of structurals or transmission towers had not been taken into consideration while fixing the rates of electricity; that there are numerous considerations such as generation expenses, power purchase expenses, employees expenses, repair and maintenance, depreciation etc. Which come into making of the tariff rates; that the refund is being claimed only in respect of duty paid on the structural which has been used for transmission towers, that the public interest aspect is also involved in framing of the various rates for consumer by different classes of buyers and the payment of duty on structures has no bearing on the fixing of electricity rates. He also contended that the electricity rates have been the same during the period when the duty was paid on the structurals as well as when no duty was paid by the Electricity Board; that this goes to show that the incidence of duty paid on structurals was not passed on to the consumers of electricity.
4. We have considered the submissions of both the sides. We observe from the records that the Assistant Commissioner applied the principle of unjust enrichment as the Electricity Board had not given any evidence to show that the incidence of duty paid by them was not passed on to the consumers. The Commissioner (Appeals) on the other hand without going into any other aspect allowed the Appeals filed by the Electricity Board following the decision of the Bombay High Court in the case of Solar Pesticides Ltd. Now the law has been settled by the Supreme Court that the principle of unjust enrichment is applicable even in respect of raw material consumed in the manufacture of a final product. All the pleas now advanced by the Electricity Board have not been considered by any of the lower authorities. We, therefore, find it necessary that the matter should go back to the adjudication authority to examine the question whether the principle of unjust enrichment is applicable in the present matters after considering the arguments advanced by the respondents. Accordingly, we allow both the appeals by way of remand to the Adjudicating authority.