TMI Blog2021 (6) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... e quantities of goods mentioned in the cancelled invoices have been exported. Merely because, the procedure under Para 12 of Chapter 4 of CBEC Excise Manual of Supplementary Instructions, 2005 has not been followed cannot be a ground to deny the refund of excess duty paid. Needless to say that no duty can be retained by department, which is not required to be paid under the provisions of law. When the matter came up for hearing, the department has not produced any such details on their side. However, the appellant has furnished the entire details with regard to rebate claim and the summary of total exports made on payment of duty during the relevant period. It is clear from these documents that the appellant has not claimed rebate on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and export had not taken place. After due process of law and after obtaining a verification report from the Range Officer, the original authority rejected the refund claim holding that the appellant has not produced evidence to prove double payment of duty and also that the appellant has not followed the procedure prescribed for cancelling the invoices. The appellant filed appeal and vide order impugned herein, the Commissioner (Appeals) upheld the order of rejection of refund. Aggrieved by such order, the appellant is now before the Tribunal. 2. The learned counsel Shri M. Karthikeyan appeared and argued on behalf of the appellant. He adverted to the details of the impugned invoices, which are as under:- Invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (in Rs.) 10200031 0031 09.04.2010 Inst.Cluster 1494 2,83,593 10200063 0063 19.04.2010 Tachometer 1728 96,455 TOTAL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is compelled to cancel an Invoice, an intimation of a cancelled invoice should be sent to the range superintendent on the same date, whenever possible. In the instant case, the assessee has not at all informed this office about these cancelled invoices which is serious violation of basic procedures. Hence, in absence of any documentary evidence to prove double duty payment, the claim for refund cannot be considered favourably for sanction and is liable for rejection. The authorised signatory of the assessee were asked several times to clarify their position. They were not forthcoming with satisfactory explanation. It is explained by the learned counsel that in the letter to the department, the appellant inadvertentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and that there is excess payment of excise duty as per the invoices. The break-up in terms of rebate claim was also furnished by appellant to establish that they have not claimed rebate of the excise duty paid in respect of these two invoices. 3. The learned counsel relied upon the decision in the case of M/s. Apex Ecotech Pvt. Ltd. Vs Commissioner of Central Excise Service Tax, Pune-I reported in 2018 (11) TMI 566 CESTAT MUMBAI and submitted that on similar set of facts, the Tribunal after verification of the certificate issued by the Chartered Accountant and other documents had held that the refund is eligible. He prayed that the appeal may be allowed. 4. The learned Authorised Representative Shri L. Nandakumar supported the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has not followed the procedure for cancellation of invoice and that there is no evidence for double payment. From the ARE-1 itself, it is easy for the department to verify whether the goods as per the cancelled invoices have been exported or not. The department does not have a case that the quantities of goods mentioned in the cancelled invoices have been exported. Merely because, the procedure under Para 12 of Chapter 4 of CBEC Excise Manual of Supplementary Instructions, 2005 has not been followed cannot be a ground to deny the refund of excess duty paid. Needless to say that no duty can be retained by department, which is not required to be paid under the provisions of law. 7. When the above appeal came up for hearing on 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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