PEACOCK INDUSTRIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) Feeling aggrieved and dissatisfied with the impugned judgment and order dtd. 6/2/2008 passed by the High Court of Judicature for Rajasthan at Jodhpur in Tax Reference Civil No.26 of 2004, the dealer - assessee has filed the present appeal.

(2.) The facts leading to the present appeal in a nutshell are as under:

(3.) Having heard Shri Puneet Jain with Ms. Christi Jain, learned counsel appearing on behalf of the appellant and Mr. N. Venkatraman, learned ASG appearing on behalf of the Revenue and considering the order passed by the Deputy Commissioner/Assessing Officer and the findings recorded by the Deputy Commissioner, we are 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.8.00 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. However, it is required to be noted that the value of the returned goods depend on the defects found in the manufactured goods which are returned. It varies considering the defects. In some returned goods the defect might be 5% and in some goods the defect might be 80% to 90%. Therefore, 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 Department heavily relied upon the market survey report and thereafter determined the value of the returned goods as Scrap at the rate of Rs.8.00 to 10 per kg. The assessee participated in the proceedings before the Deputy Commissioner. 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 learned 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.