2003 (12) TMI 399 - AT - Central Excise

Summary

Issues Involved:
1. Inclusion of packing cost in the assessable value of excisable goods.
2. Applicability of the extended period of limitation for raising duty demands.

Detailed Analysis:

1. Inclusion of Packing Cost in Assessable Value:

The appellants, engaged in manufacturing commodities under Chapters 48 and 76 of the Central Excise Tariff Act, 1985, claimed deductions for secondary packing costs. The department contended that the packing was neither durable nor secondary under Section 4(4)(d)(i) of the Central Excise Act, thus requiring inclusion in the assessable value. The authorities found that the packing (wooden or iron pallets and plastic film) was essential for marketability and transportation, hence necessary for the goods' condition at the factory gate. The Tribunal upheld this finding, emphasizing that the cost of such packing should be included in the assessable value, citing settled legal positions.

2. Applicability of the Extended Period of Limitation:

The appellants argued that the demand for duty amounting to Rs. 45,02,564.97 for the period September 1987 to October 1991 was barred by limitation, referencing earlier show cause notices covering subsequent periods. They relied on the Tribunal's decision in Neyveli Lignite Corporation Ltd. v. CCE. The Tribunal found merit in this contention, noting that the department's knowledge of the deduction claims precluded allegations of suppression. Consequently, the demand covered by the show cause notice dated 29-9-92 was held to be time-barred.

Separate Judgments:

Member (Judicial):
The Member (Judicial) upheld the inclusion of packing costs in the assessable value but ruled that the demand covered by the show cause notice dated 29-9-92 was barred by limitation. This decision was based on the Tribunal's previous rulings and the department's prior knowledge of the deductions.

Member (Technical):
The Member (Technical) concurred on the inclusion of packing costs but disagreed on the limitation issue, citing the Larger Bench decision in Nizam Sugar Factory v. CCE and the Supreme Court ruling in B.P.L. Ltd. v. CCE. He held that the extended period of limitation was applicable despite the department's prior knowledge.

Third Member (Technical):
The Third Member (Technical) reviewed the arguments and evidence, concluding that the extended period of limitation was not applicable due to the department's awareness of the deductions. This led to agreement with the Member (Judicial) that the demand was time-barred.

Majority Order:
The majority order confirmed the duty demand of Rs. 30,52,768.62 and set aside the demand of Rs. 45,02,564.97 as time-barred. The penalty was reduced to Rs. 1,00,000/-. Consequently, Appeal No. E/604/1996 was partly allowed, and Appeal No. E/2036/2000 was rejected.