SURYA EXPORTS LTD. Vs. CCE

JUDGEMENT

(1.) THIS appeal is against rejection of a claim for refund of duty of Rs. 2,72,379/ -. The appellants had procured certain textile made -ups (Heading 63.02 of the CETA Schedule) from the manufacturers of the said goods under cover of four invoices dated 9.10.2003, 17.10.2003, 22.10.2003 and 3.12.2003 on payment of cum -duty price. The goods were allegedly exported by them. They filed a refund claim dated 21.2.2004 for the aforesaid amount under Clause (a) of the proviso to Sub -section (2) of Section 11B read with Sub -section (1) of the said Section. In that application, they claimed that they had paid the cum -duty price of the above goods to the supplier (manufacturer) and had become entitled to refund of the duty amount under Clause (a) of the proviso to Sub -section (2) of Section 11B when they subsequently exported the goods out of India qua merchant -exporters. Upon receipt of the refund claim, the department issued a 'deficiency memo' to the party for production of the requisite documents. The appellants could not produce the original documents evidencing purchase and export of the goods. The original copies of manufacturers' invoices were not produced, nor were even the duplicate copies produced by the party, despite grant of farther opportunity. On the other hand, the party took the weird stand that, as excise duty was paid on monthly basis through TR 6 Challan, excise invoices were no longer duty -paying documents. In the circumstances, the original authority recorded a finding that the appellants had not produced the original and duplicate copies of manufacturers' invoices. It was also found that the invoices issued by the appellants as exporters were dated prior to the dates of the corresponding invoices of the manufacturer. Thus it appeared to the original authority that there was no evidence of the goods having been exported by the appellants. Both these findings were upheld by the first appellate authority. The present appeal is against the rejection of the refund claim by the lower authorities on the basis of the above findings.

(2.) HEARD learned Counsel for the appellants and teamed SDR for the Revenue. Learned Counsel has not produced the documents referred to in Section 12A of the Central Excise Act or any other documents to support the refund claim filed under Section 11B. In the absence of the original or duplicate copies of the manufacturers' invoices, it cannot be said that there is a conclusive evidence of payment of duty of excise on the subject goods. Further, the pre -dated invoices produced by the appellants and alleged to have been used for export of the goods can hardly be accepted ac evidence of the incidence of duty on the goods having not passed on to the foreign buyer inasmuch as the goods covered by the pre -dated invoices of the exporter cannot be held to be the same as the goods covered by the manufacturers' invoices shown to have been issued later. As rightly pointed out by learned SDR, there is no evidence of the goods supplied by the manufacturer having been exported by the appellants. The appellants have even failed to satisfy the substantive requirements of Clause (a) of the proviso to Section 11B(c) of the Central Excise Act. Procedurally also, they have failed to comply with the conditions of Section 11B. Hence the order of the lower appellate authority is liable to be sustained and it is ordered accordingly. The appeal is dismissed.