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TMI Blog2008 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... "1. Whether in the facts and on the circumstances of the case, the Tribunal was justified in coming to the conclusion that the goods received back in the factory were not defective/damages moulded plastic chairs but were plastic furniture scrap and this finding is based on any evidence and is, therefore, vitiated? 2. Whether on the facts and in the circumstances of the case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, that the goods was not defective furniture received back by the assessee, and was only plastic furniture scrap. The next submission made is, that there is no evidence on record to show, that the value of the goods so received by the assessee was Rs. 8 to 10 per Kg. Elaborating this argument it was contended, that the assessee had filed various documents, and certificates from various 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted, that under the scheme of things the goods can be either finished goods, or semi finished goods, or scrap, and there is no fourth category, as claimed by the assessee, and in any case, whatever be the nomenclature of the goods, that may be given by the assessee, what is relevant for the purpose of Rule 173L(3)(v) is, that the value of the goods so received back if is found to 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 analogo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch goods within forty-eight hours of receipt of the information; (iii) the assessee stores the said goods separately pending their being re-made, refined, reconditioned or subjected to any other similar process in the factory unless otherwise permitted by the Commissioner by an order in writing and makes such goods available for inspection by the proper officer when so required; (iv) the amount 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cludes the aspect of requirement of principles of natural justice, and as appears from the order of the Dy. Commissioner, that the concerned authority was of the requisite opinion, about the value of the goods being less than the amount of excise duty originally paid, and therefore, in order to comply with the requirements of principles of natural justice, show cause notice was given to the assessee, and as the things 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack by the assessee, much less that the price reported in the market survey report is inadequate. Similarly regarding the nature of substance received, being scrap, or not, also, only contention raised was, that more than 75% damaged furniture is only in the form of second furniture, capable of being resold. 12. The learned Tribunal, by the judgment impugned, has dismissed the appeal, for the reasons given 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NVAT credit of the duty paid as if such goods are received as inputs under the CENVAT Credit Rules, 2002 and utilise this credit according to the said rules. (2) If the process to which the goods are subjected before being removed does not amount to manufacture, the manufacturer shall pay an amount equal to the CENVAT credit taken under sub-rule (1) and in any other case the manufacturer shall pay duty on goods received under 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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