2009 (4) TMI 518

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.... The appellant is a manufacturer of cotton yarn. Sales were effected through their agent in Maharashtra. According to the appellant the price at which the sales are effected are lesser than the price on the basis of which duty liability is discharged while removing the goods from the factory. The excise duty was actually realized from the buyer only with reference to the price actually charged by him and the balance was borne by the manufacturer himself, so the appellant claimed refund of that portion of the excise duty which was not passed on to the buyer. The claims for refund, have been rejected by the Department. 3. Originally, the Department had issued show cause notices dated 26-9-1996, under Section 11B of Central Excise Act,....

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....Therefore, the refund claim was liable for rejection. Accordingly, the Department rejected the claim of the appellant. 6. This decision of the Department was upheld by the Appellate Authority as well as the CESTAT on the ground that the consignment agents differed from the address of the invoice of sales; the address shown was that of the administrative office and not the depots; the goods cannot be identified in the absence of any mark or numbers in the sale invoices to ascertain the correct sale price of a particular consignment; and the overall dispatch and sale of goods to a particular consignment agent would serve no purpose to work out the exact amount to be refunded and therefore dismissed the appeal. 7. The following....

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....re different from the goods covered by the Consignment Agent's invoices. The appellant had filed an affidavit to the effect that they had sent all the goods and it is not possible for them to ascertain certainly to whom the specific goods would be sold. This affidavit should be accepted. Therefore, the refund cannot be denied. 10. The learned Senior Central Government Standing Counsel would submit that the discrepancy in address shown in the two sets of invoices was not denied and at least there should have been identification marks to enable the Department to correlate the goods sold by the Consignment Agent with that of the goods dispatched to the Consignment Agent's address. In the absence of this, the appeal deserves to be dismi....