TMI Blog2011 (2) TMI 1240X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was not passed to the customer in the form of availment of MODVAT/CENVAT credit. Had this reason been given in the show cause notice, the appellant could have given detailed answer. Moreover, the customer is not a manufacturer of the goods and, therefore, no question of availment of MODVAT/CENVAT credit, whatsoever, arises, Tax Appeal is allowed and disposed of - 3 of 2005 - - - Dated:- 4-2-2011 - Bhagwati Prasad, C.J. and D.N. Patel, J. REPRESENTED BY : S/Shri Binod Poddar, Sr. Advocate, Darshan Poddar, Deepak Sinha, Piyush Poddar, Vikash Pandey, Advocates, for the Appellant. Shri P.K. Prasad, Sr. Advocate and Ms. Ruby Parween, Advocate, for the Respondent. [Order per : D.N. Patel, J. (Oral)]. This appeal has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited (BHEL). 3. It is further submitted by learned senior counsel appearing for the appellant that by mistake excess excise duty was paid by the appellant by adding machining charges and packing and forwarding charges on the sale value. In fact, excise duty was payable only on sale value, which was Rs. 30,50,000/-. By mistake, the appellant has miscalculated the sale value by adding cost of machining of Rs. 5,01,760/- and by adding the cost of packing and forwarding of Rs. 15,052.80/- in a sale value of Rs. 30,50,000/-. Thus, there was an error on the part of the appellant in calculation of the excise duty. 4. It is further submitted by learned senior counsel appearing for the appellant that the sale value of Rs. 30,50,000/- was incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant i.e. it has not been paid by the Bharat Heavy Electricals Limited (BHEL) and, thereafter, the order was passed against the present appellant by the Deputy Commissioner, Central Excise Division, Dhanbad in order-in-original dated 28th March, 2003. Being aggrieved and feeling dissatisfied by the aforesaid order-in-original, the appellant had preferred an order-in-appeal before the appellate authority i.e. before the Commissioner (Appeals), Customs Central Excise, Ranchi. Before the appellate authority also, it was submitted that the incidence of excess-paid duty has not been passed on to the customer i.e. to the Bharat Heavy Electricals Limited (BHEL). But this aspect has also not been properly appreciated by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VAT/CENVAT credit has been availed or not by the customer of the appellant i.e. by the Bharat Heavy Electricals Limited (BHEL), cannot be a reason for denying the claim of refund and it was never a reason given in the show cause notice. 8. It is further submitted by learned senior counsel appearing for the appellant that the reason was given in paragraph 5 of the order passed by the Tribunal that from the evidences submitted by the appellant it is also not established that the incidence of excess-paid duty was not passed on to the customer of the appellant in the form of availment of MODVAT/CENVAT credit. The aforesaid reason given by the Tribunal for dismissing the appeal, runs counter to the fact that Bharat Heavy Electricals Limited (B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation Limited (APGENCO). The sale value was at Rs. 30,50,000/- and instead of pay excise duty of this amount, it appears that the appellant has added cost of machining at Rs. 5,01,760/- and cost of packing and forwarding charges amounting to Rs. 15,052.80 to the sale value of Rs. 30,50,000/- and thus excise duty was paid in excess on these consolidated amounts and thus a claim of refund was made by the appellant for refund of excess payment of excise duty amounting to Rs. 2,48,070/-. A certificate of the Chartered Accountant was also forwarded (which is at Annexure-10 to the memo of this appeal). The same was received by the office of the Central Excise Division, Dhanbad dated 25th September, 2002 (as per Annexure-7 to the memo of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he show cause notice given by the Deputy Commissioner, Central Excise Division, Dhanbad dated 5th February, 2003 (Annexure 8) that whether the purchaser of the appellant has availed any MODVAT/CENVAT credit. Despite this fact, the Tribunal has travelled beyond the show cause notice and has given a reasoning in paragraph 5 of the order passed by the Tribunal that the appellant has not established whether incidence of excess paid duty was not passed to the customer in the form of availment of MODVAT/CENVAT credit. Had this reason been given in the show cause notice, the appellant could have given detailed answer. Moreover, the Bharat Heavy Electricals Limited (BHEL) is not a manufacturer of the goods and, therefore, no question of availment o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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