2004 (1) TMI 446 - AT - Central Excise

Summary

Issues:
Waiver of pre-deposit of duty and penalty arising from inclusion of cost of corrugated carton in assessable value of talcum powder.

Analysis:
The issue in this case revolves around the application for waiver of pre-deposit of duty and penalty amounting to Rs. 15,30,802 and Rs. 15 lakhs respectively. The dispute arose from the order of the Commissioner (Appeals), Surat, which upheld the duty demand and penalty by determining that the cost of corrugated carton used for packaging the talcum powder should be included in the assessable value of the final product.

The appellants, represented by their counsel, argued that the containers used were durable and returnable, as evidenced by the purchase order and agreement. They contended that the absence of actual return of the containers should not be a determining factor, and the mere fact that the containers were agreed to be durable and returnable by both the customer and supplier should suffice to exclude the cost of containers from the assessable value. Additionally, they raised a plea of time bar in their defense.

On the other hand, the prayer for waiver was opposed by the ld. DR, who highlighted that no concrete agreement or contract between the appellant and the buyer regarding the durability and returnability of the containers was presented before the lower authorities. Consequently, the authorities rightly concluded that the claim of the appellants regarding the nature of the containers was unsubstantiated.

After carefully considering the arguments from both sides and examining the relevant records, including the purchase orders from the relevant period, the Tribunal found that previous decisions had established the principle of not including the cost of durable and returnable containers in the assessable value of the final product. Based on this precedent and the strong prima facie case made by the applicant, the Tribunal decided to waive the requirement of pre-deposit and stay the recovery pending appeal.