Per D.N. Patel, J.-This appeal has been preferred under Section 35-G of the Central Excise Act, 1944 (hereinafter to be referred as the Act, 1944 for the sake of brevity) against an. order passed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata dated 11 the August, 2004 in Appeal No. ESM-193 of 2003 Order No. A-538/ KOL/ 04, whereby, the claim for refund of the excess excise duty, paid by the appellant, was rejected and the order passed by the Commissioner (Appeals), Customs & Central Excise, Ranchi was confirmed. The appellant had made claim for refund under Section 11-B of the Act, 1944.

2. Learned senior counsel appearing for the appellant submitted that the Bharat Heavy Electricals Limited (BHEL), Tiruchirapalli, which is a Government of India Undertaking, placed an order dated 8th August, 2001 to the appellant-company for machining and teeth cutting of the three numbers of raw castings supplied by it. The aforesaid job work, which was to be done by the appellant, was finally to be supplied to M/s Andhra Pradesh Power Generation Corporation limited, who is a purchaser from the Bharat Heavy Electricals Limited (BHEL), because original order was given by M/s Andhra Pradesh Power Generation Corporation limited to the Bharat Heavy Electricals limited (BHEL). and ultimately the Bharat Heavy Electricals Limited (BHEL) had placed an order of job work 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 9f 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 excise duty.

4. It is further submitted by learned senior counsel appearing for the appellant that the sale value of Rs. 30,50,000/- was inclusive of excise duty. The sale price was also inclusive of packing and forwarding charges. The excess duty paid by the appellant comes to Rs. 2,48,070/and, therefore, an application for refund under Section 11-B of the Act, 1944 was preferred, which was received by the office of the Deputy Commissioner of Central Excise Division, Dhanbad on 25th September, 2002. A certificate of the Chartered Accountant was also supplied to the effect that the amount of excess excise duty. so paid, has not been paid by the. customer of the appellant. The same are at Annexure-7 and at Annexure-10 to the memo of the appeal. The certificate of the Chartered Accountant is dated 21 st September, 2002.

5. It is further submitted by learned senior counsel appearing for the appellant that the aforesaid show cause notice issued by the Deputy Commissioner, Central Excise Division, Dhanbad was replied on 18th February, 2003 and paragraph 7 of the reply reads as under:

"7. The certificate of Chartered Accountant was submitted to your honour alongwith the refund claim application for your kind consideration. We again enclose a copy of the same for your kind reference."

6. It is further submitted by learned senior counsel appearing for the appellant that while deciding the aforesaid show cause notice, the Deputy Commissioner, Central Excise Division, 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 orde