COMMISSIONER OF CENTRAL EXCISE. Vs. MYSORE ELECTRICAL INDUSTRIES LTD.

JUDGEMENT

(1.) This is an appeal by the revenue challenging the order passed by the Tribunal which has held that the Assessee is entitled to refund. The Assessee by an arithmetical mistake paid the highest amount of duty as per purchase order dated 5-2-2002 of M/s. Karnataka Power Transmission Corporation Limited. The price of the Unit at Lot-3a is Rs. 23,23,240/-whereas the price of the Unit at Lot-3b-1 is Rs. 24,96,275/- and the differential value works out to Rs. 1,73,035/- per Unit. The Assessee had cleared three Units and the total differential value is Rs. 5,19,105/-. The excess duty at 16% was paid which works out to Rs. 83,56,080/- rounded off to Rs. 83,057/-. The Assessee claimed refund of the said amount on the ground that the consumer M/s. K.P. T.C.L. refused to pay the amount and the same was borne by the Assessee. In support of such a contention the Assessee produced evidence to demonstrate that they had not passed on the excess duty burden to the consumer. The Commissioner of Appeals relying on the judgment of S. Kumar's case [, 2003 (153) E.L.T. 217 (Tri. - LB)] rejected the said claim. Aggrieved by the said order the revenue has preferred this appeal.

(2.) The Tribunal relying on the judgment of the coordinate Bench in CC, Cochin v. Rajesh Chemicals,2006 196 ELT 64 (Tribunal, Bangalore), held that where the excess payment of duty was made due to arithmetical error it cannot be said to be considered as duty and the same is also not hit by the provisions of unjust enrichment. The Tribunal also relied on a judgment of the Division Bench of the appellate Tribunal in CCE, Bhopal v. Tesla Transformers, 2001 133 ELT 484 (Tribunal-Delhi). Therefore it set aside the order of the authority and directed refund of the excess duty paid. Aggrieved by the same, the Revenue has filed the present appeal.

(3.) Heard the counsel for the revenue.