9911796707
Advanced Search 
TMI Blog2008 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal was justified in coming to the conclusion that the value of goods received back by the assessee was Rs.8/- per kg. which is less than the amount of Duty paid at the time of their clearance and whether the said finding is based on any material?" 2. Necessary facts are, that the assessee is a manufacturer of plastic moulded furniture. The assessee submitted a claim for refund of excise duty, on the basis of it having accepted the rejected goods, returned to it by its distributors, for which it had issued credit notes to the parties. According to the assessee the damaged/rejected goods so received is subjected to process of grinding, wherein the same is cut into small pieces, which are mixed in certain proportion with the fresh raw material, and thus the goods so produced is cleared on payment of excise duty. Since they had refunded back the entire excise duty amount to the distributors through credit notes, they are entitled to refund of that amount. The concerned authority found, that the rejected goods so received by the assessee is required to cut into small pieces before being recycled, and even the same cannot be used entirely for manufacture of the articles, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arious dealers, and customers, to show, that they are prepared to purchase the goods at the rate of Rs. 20 to 21 per Kg. while the so called market survey report, as is said to have been got conducted by the Department, even twice, is not supported by any material, it is not shown as to who were the persons or customers who were contacted by the Department, the copy of the survey report was not given to the assessee, and the assessee had no opportunity even to cross-examine those persons from whom these datas were collected, and thus the so called market survey report cannot constitute any material on record, for the authorities below, to arrive at the price of the goods, so as to come to the conclusion, that the price of the goods received back by the assessee was less than the excise duty paid, and to deny the claim of refund, on that count. The next submission made is, that the burden lay on the Department to prove, that the value of the goods received back by the assessee was less than the amount of duty paid originally at the time of clearance from the factory, which burden the Department has failed to discharge, and the documents and certificates produced by the assessee have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be less than the excise duty paid then the refund cannot be claimed, and since the authorities below have not believed the evidence led on the side of the assessee, about the value of the goods, and has relied upon the market survey report of the Department, that again being a pure finding of fact, does not require any interference. Replying the argument of burden of proof, it was submitted, that the initial onus had been discharged by the Department, by submitting the market survey report, and then the assessee has failed to rebut that material. Regarding the later acceptance of the claim of refund, it was submitted, that the law has undergone a change, as the subsequent matters were covered by the provisions of Rule 16 of the Central Excise Rules, 2002, which does not contain provision analogous to Rule 173L(3)(v), thus those judgments are not of any assistance to the assessee, for the present purpose. Regarding remand, it was submitted, that it is nobody's case, that the assessee was denied any opportunity to lead any evidence, nor any grievance in this regard had been raised at any point of time by the assessee. It is not shown, as to what other evidence the assessee want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of refund payable shall in no case be in excess of the duty payable on such goods after being re-made, refined re-conditioned or subjected to any other similar process in the factory: Provided further that in relation to the declared excisable goods, for Clause (ii) of the first proviso, the following clause shall be substituted, namely:— "(ii) the assessee gives information of the reentry of each consignment of such excisable goods into the factory to the proper officer in writing in the proper form within twenty-four hours of such re-entry or within such further period not exceeding ten days, as the Commissioner may, on sufficient cause being shown, permit in any particular case". (2) The assessee shall maintain a detailed account of the returned goods and the processes to which they are subjected, after their return to the factory in the proper form. (3) No refund under sub-rule (1) shall be paid until the processes mentioned therein, have been completed and an account under sub-rule (2) having been rendered to the satisfaction of the Commissioner within six months of the return of the goods to the factory. No refund shall be admissible in respect of the duty-paid,— (i) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs have come up, before issuance of such show cause notice, the market survey was got conducted by the Department. Thus, the matter was gone into after receiving reply of the assessee, and the parties were ad-idem on the question, that it is to be established on record, as to what was the price of the goods, so as to enable the authority to arrive at a conclusion, as to whether the value of the goods was less than the amount of excise duty paid, or was more than the said excise duty. In that sequence a look at the order of the Dy. Commissioner does show, that he has cataloged the contentions of the parties ad seriatim at page-3 of the order, and has then taken up the matter point-wise. While so discussing the matter point-wise, it has examined the process required to be employed, for using the goods received back, and has also considered the factual aspect of the matter, that the goods have been received back from the far away places like Delhi, Bombay, Pathankot, Siliguri, Aurangabad etc., and has also examined the certificates given by the distributors of the assessee, and considering the totality of circumstances, they have not been relied upon, and have been found to be of no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in the other order, which also happens to be available with us, and shows, that it was contended before the learned Tribunal, that damaged furniture, which is returned back, is only in the form of second furniture capable of being resold, and that the Revenue has not produced any evidence to fortify, that the value of the goods is less than the duty paid by the appellant, and has relied upon the evidence produced by the department about the price being more than Rs. 8/- per Kg., while the Department pointed out, that the assessee made request for conducting a fresh market enquiry for ascertaining the price of defective furniture, and on his submission fresh market enquiry was conducted, and accordingly the order of the original authority had been passed. The learned Tribunal after noticing the contentions found, that there is specific finding based on market survey conducted, that requisite value of the goods received by the assessee is less than the duty paid by the appellant at the time of clearance, there is specific finding of fact in this regard, that the appellant had received plastic scrap. Thus, the appeal was dismissed. 13. Even at the cost of repetition we are constrai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er sub-rule (1) at the rate applicable on the date of removal and on the value determined under sub-section (2) of section 3 or section 4 or section 4A of the Act, as the case may be. Explanation: The amount paid under this sub-rule shall be allowed as CENVAT credit as if it was a duty paid by a manufacturer who removes the goods. (3) If there is any difficulty in following the provisions of sub-rule (1) and sub-rule (2), the assessee may receive the goods for being remade, refined, re-conditioned or for any other reason and may remove the goods subsequently subject to such conditions as may be specified by the Commissioner." 17. From a look at this provision would show, that it does not provide for any eventuality, to deny claim of refund, on the ground, as postulated by Rule 173L(3)(v). Therefore, these subsequent orders do not serve cause of the assessee. 18. Even according to the assessee, it is using the goods received back by it, by grinding it, and converting it into flakes, then using some portion of it by mixing it in fresh raw material. Obviously, therefore, it is not the case, that it is using furniture as defective damaged moulded plastic furniture, whether fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
