TMI Blog2009 (4) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... . [Judgment per : Prabha Sridevan, J.]. Both these appeals have been directed on the identical questions of law since they have arisen out of the common order passed by the CESTAT [2005 (185) E.L.T. 294 (Tri. - Mad.)]. 2. The facts of the case are as follows :- The appellant is a manufacturer of cotton yarn. Sales were effected through their agent in Maharashtra. According to the appellant the price at which the sales are effected are lesser than the price on the basis of which duty liability is discharged while removing the goods from the factory. The excise duty was actually realized from the buyer only with reference to the price actually charged by him and the balance was borne by the manufacturer himself, so the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that in the absence of any evidence that the goods removed from the factory are sold at the places other than the one mentioned in the invoices issued from the factory, the sanctioning of refund claim is not permissible under law. Therefore, the refund claim was liable for rejection. Accordingly, the Department rejected the claim of the appellant. 6. This decision of the Department was upheld by the Appellate Authority as well as the CESTAT on the ground that the consignment agents differed from the address of the invoice of sales; the address shown was that of the administrative office and not the depots; the goods cannot be identified in the absence of any mark or numbers in the sale invoices to ascertain the correct sale price of a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of refund and ordering recovery of refund amount already ordered. The learned senior counsel also submitted that it is not the case of the Department that goods covered by the factory invoices are different from the goods covered by the Consignment Agent s invoices. The appellant had filed an affidavit to the effect that they had sent all the goods and it is not possible for them to ascertain certainly to whom the specific goods would be sold. This affidavit should be accepted. Therefore, the refund cannot be denied. 10. The learned Senior Central Government Standing Counsel would submit that the discrepancy in address shown in the two sets of invoices was not denied and at least there should have been identification marks to enable the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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