2022-TIOL-NEWS-211 Part 2 Dated : Thursday, September 08, 2022

2022-TIOL-76-SC-CX

Peacock Industries Ltd Vs UoI

CX - Rule 173L of CER, 1944 - Plastic moulded furniture - Assessee had submitted a claim for refund of the excise duty, on the basis of its having accepted the rejected goods, returned to it by its distributors, for which it had issued credit notes to the parties - Considering the market survey report, the Assessing Officer/Deputy Commissioner valued the returned goods at Rs.8 to 10 per kg treating the same as scrap and since the value of the returned goods was less than the amount of duty originally paid at the time of their clearance from the factory, the assessee was held to be not entitled for the refund considering rule 173L(v) - Tribunal dismissed the assessees appeal and the High Court also rejected the reference by observing that the value determined by the Department at Rs.8 to 10 per kg was on appreciation of evidence and after giving opportunity to the assessee and relying upon the market survey report(s) which was neither asked by the assessee nor challenged by the assessee and the determination of the value can be said to be a question of fact and the same is not required to be interfered with in the reference - Aggrieved by this order, the present appeal. Held: Bench is of the opinion that neither the Deputy Commissioner nor the Tribunal or even the High Court have committed any error in rejecting the refund claim of the assessee - At the outset, it is required to be noted that after giving an opportunity to the assessee on the value of the returned goods and considering the material on record including the market survey report, the Department determined the value of returned goods at Rs.8 to 10 per kg - No cogent evidence was led by the assessee on the value of the returned goods - The assessee only produced the invoices with respect to secondary market - The assessee has to lead the evidence with respect to each consignment of the returned goods, which the assessee failed to prove in the present case - The assessee neither asked for copy of the market survey report nor asked for any cross-examination on the market survey report and/or led any cogent evidence on the value of the returned goods - Such a grievance of non-supply of market survey report was even not raised before the Tribunal - Therefore, thereafter it is not open for the assessee to raise the issue with respect to non-supply of the market survey report for the first time before the High Court - Submission that as the returned goods can be reused for the manufacture of the products and, therefore, the value of the raw material can be considered for the purpose of determination of the value for refund, is not supported by any statutory provision - As per explanation to clause (v) of rule 173L, "value" means the market value of the excisable goods and not the ex-duty value thereof, therefore, submission of the assessee that the returned goods may be treated as a raw material and, therefore, the "value" of the raw material can be considered for the purpose of "value" while determining the refund under rule 173L cannot be accepted - As the value of the returned goods determined by the Deputy Commissioner at Rs.8 to 10 per kg is found to be less than the amount of duty already paid, the appellant is rightly denied the refund of the excise duty paid - Concurrent findings recorded by the lower authorities are not required to be interfered with - Appeal fails and is dismissed: Supreme Court [para 3, 4, 4.1, 5]

- Appeal dismissed: SUPREME COURT OF INDIA