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TMI Blog2024 (8) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... er. In the absence of any contrary claim/evidence to the effect of the respondent‟s version, the documentation were sufficient enough to establish the bonafides and uphold the refund claim filed by the respondent, duly establishing the claims of the respondent. This Tribunal in the case of M/S. PRICOL UNIT - I VERSUS COMMISSIONER OF GST CE, COIMBATORE [ 2021 (6) TMI 979 - CESTAT CHENNAI] had held the said procedure to be procedural and while allowing refund of duty in the said case, it had categorically asserted that the department was not empowered to retain duty which is not payable under the provisions of law. Once an invoice is cancelled, no duty can be demanded thereon and the onus thereafter, lies on the department to establish that goods were actually moved under the cover of the said invoice and invoice subsequently cancelled leading to loss of duty. There is not a shred of evidence to establish such a case in the present matter. There are no infirmity in the order of the Ld.Commissioner(Appeals) - appeal filed by the department is dismissed. - HON BLE SHRI R. MURALIDHAR , MEMBER ( JUDICIAL ) And HON BLE SHRI RAJEEV TANDON , MEMBER ( TECHNICAL ) Shri K. Chowdhury , ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubject invoice. That remarks sales return‟ appended on the subject invoice no.2200000000000097 dated 12.04.2012 indicated that the material under the subject invoice were cleared and subsequently the same would have been returned by their buyer. No document was submitted to establish that incidence of duty had not been passed on by the Respondent. 4. After following the due process, the adjudicating authority rejected the aforesaid refund claim. However, in appeal, the Ld.Commissioner(Appeals) vide Order-in-Appeal referred supra allowed the refund claim setting aside the order of the lower authority. It has been held therein that the goods vide Invoice No.200000000000097 dated 12.04.2012 were not cleared and duty liability thereon was paid. Relevant para of the Commissioner(Appeals)‟s order is reproduced hereunder:- 5. I find that the goods in question under invoice no.200000000000097 dated 12.04.2012 was not cleared but duty stands paid from Cenvat Credit accounts. This observation is supported by the affidavit of transporters namely Sri Kanhaiya Singh, who is a regular transporter of the Appellant and who carried the goods under invoice no.200000000000097 dated 12.04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainable. 6. Heard both sides and perused the appeal records. 7. We note that the Revenue authorities have challenged the impugned order of Commissioner(Appeals) essentially claiming that the refund claim on the basis of affidavit and certificate as allowed by Ld.Commissioner(Appeals) was inappropriate and not in accordance with law. We also note from records that Revenue has nowhere disputed the fact of discharge of duty by the appellant on the strength of the revised invoice under which the goods were cleared. It is also borne out from records that the respondents had inadvertently discharged excise duty in the month of April 2012 having mistakenly issued invoice No.200000000000097 dated 12.04.2012 for clearance of the entire consignment pertaining to purchase order No.2900001399/109. As it has not been disputed that the respondent was not in a position to supply the entire consignment vide invoice dated 12.04.2012, a fresh invoice for part quantity was issued on 13.04.2012 and goods supplied with respect to the said purchase order. 8. In support of the proposition that invoice NO.200000000000097 dated 12.04.2012 was cancelled and no goods were supplied thereto, the respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e without clearance of any goods. However, such finding of the Appellate Authority was contested by the Department without adducing any corroborative evidence contrary to the evidence relied upon by the Ld.Appellate Authority. (iv) Remarks sales return indicated that the goods would have been returned by the buyer. The goods did not leave the premises in the first place, as indicated by way of gate register and other documents presented before the lower authority. 10. We note that in the absence of any contrary claim/evidence to the effect of the respondent‟s version, the documentation as referred in para 8 were sufficient enough to establish the bonafides and uphold the refund claim filed by the respondent, duly establishing the claims of the respondent. 11. In support of their contention, the respondent have also cited the decision of this Tribunal in their own case reported as CCE, Jamshedpur v. Tata Growth Shop 2024 (6) TMI 1002 CESTAT Kolkata in Excise Appeal No.70101/2013 where duty was paid twice. The relevant portion of the said decision is as under : 6. In this case, the facts are not in dispute that the appellant had issued 559 invoices during the period January 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 [Techometer] 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 resulted in excess payment of duty to the tune of Rs.3,80,523/- on the cancelled invoices. On perusal of records, I find that the original authority has alled for a verification report from the Range officer. It is mentioned in the report that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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