TMI Blog2011 (2) TMI 416X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- - Held that: - Nowhere it was mentioned in the show cause notice given by the Deputy Commissioner, Central Excise Division, Dhanbad dated 5th February, 2003 that whether the purchaser of the appellant has availed any MODVAT/CENVAT credit. - Moreover, the Bharat Heavy Electricals Limited (BHEL) is not a manufacturer of the goods and, therefore, no question of availment of MODVAT/CENVAT credit, whatsoever, arises. This aspect of the matter has also not been properly appreciated by the Tribunal. - Refund of excess payment of duty allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... to be done by the appellant. Thus, as per the purchase order, job work was done and the bill was sent to the Bharat Heavy Electricals 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 excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, Dhanbad has not properly appreciated the certificate given by the Chartered Accountant. The amount of excess duty has not been paid by the customer of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r counsel appearing for the appellant that the reason/ground, which was never given in the show cause notice, has been advanced by the Tribunal. Whether a MODVAT/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 availmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Bharat Heavy Electricals Limited (BHEL) means the sale value between the Bharat Heavy Electricals Limited (BHEL) and M/s. Andhra Pradesh Power Generation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 2,48,070/- should not be rejected on the above grounds under Section 11B of Central Excise Act, 1944." Nowhere it was mentioned in the 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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