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TMI Blog2021 (6) TMI 979X X X X Extracts X X X X X X X X Extracts X X X X ..... them were cancelled 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 No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During adjudication, as per the direction of the adjudicating authority, the Range Officer had submitted a report dated 05.05.2011 observing the following:- * The facts mentioned in the letter no.PL/CET/099/2011-2012, dated 08.04.2011 are not true. * The applicant states that the goods were cleared on payment of excise duty to domestic market. However, the Invoice Nos. stated in the letter pertains to export clearances and the applicant has filed rebate claim for the same. The same was included in the claim for an amount of Rs. 41,41,389/- [95 ARE-1s] and verified by this office vide OC No.387/2010, dated 14.01.2011. * The applicant has not furnished details of any other invoice of matching quantity and duty. Moreover, the invoice num ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, 2005, which reads as under:- "When an 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. However, in case of exceptional circumstances beyond the control of assessee should this not be possible, the intimation should be sent on the next working day." It is submitted by him that the above instructions are only procedures to facilitate the department. The appellant had come to know of the error of paying excess duty only after filing the returns. Not following the administrative instruction of intimating the department cannot be a ground to deny the excess duty paid by appellant. The department has no right to retain the duty wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m has been correctly rejected by the authorities below. 5. Heard both sides. 6. The issue is with regard to the rejection of refund claim filed under section 11B of Central Excise Act, 1944 on the ground of excess payment of excise duty. It is the case of the appellant that though they prepared two invoices 10200026 and 10200061 showing quantity as 1500 [Inst Cluster] and 1716 [Tachometer] respectively. They did not export the goods as per these invoices due to the difference in the quantity of goods that they intended to export. So, these two invoices were cancelled by them and separate new invoices were raised, showing the correct quantity of goods. While filing the returns, however, they paid duty on all the four invoices. This resulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 these invoices. They have also furnished the Certificate from their Chartered Accountant to show that the rebate has not been claimed on these invoices. The certificate also establishes that there is excess payment of duty. The relevant paragraph of the Certificate of the Chartered Account is reproduced as under:- "Based on our examination, aas above, and the information and explanations given to us, we hereby certify that, the above mentioned invoices were cancelled and excess pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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