1985 (9) TMI 88 - SC - Central Excise

Whether the cost of final packing in corrugated fibre board containers would be liable to be included in the value of the cigarettes for the purpose of assessment to excise duty? Held that - Now it is apparent that under s. 3 of the Act the levy of excise duty is made on manufactured cigarettes, which after all are the excisable goods. And s. 4 provides how the value of manufactured cigarettes shall be determined. The expression value has been extended to include the cost of packing. The packing itself is not the subject of the levy of excise duty. The manufactured cigarettes are the subject of the levy, because excise duty is here charged on the manufactured commodity, that is to say, cigarettes. For the purpose of computing the measure of the levy, however, the statute has given an extended meaning to the expression value in clause (d) of sub-section (4) of section 4 of the Act. Plainly, the extension must be strictly construed, for what is being included-in the value now is something beyond the value of the manufactured commodity itself.

Issues Involved:
1. Inclusion of the cost of final packing in the value of cigarettes for excise duty assessment.
2. Applicability of the doctrine of promissory estoppel against the government.

Detailed Analysis:

1. Inclusion of the Cost of Final Packing in the Value of Cigarettes for Excise Duty Assessment:

The primary issue revolves around whether the cost of final packing in corrugated fibre board containers should be included in the value of cigarettes for the purpose of excise duty assessment. The respondents argued that this cost should not be included as it is intended to protect the cigarettes during transportation, not for sale at the factory gate. The appellant contended that section 4(4)(d)(i) of the Central Excises and Salt Act, 1944, read with the Explanation, mandates the inclusion of the cost of all packing, whether primary or secondary, in the value of the goods.

The court referred to its earlier judgment in Union of India v. Bombay Tyre International Ltd. [1984] 1 SCC 467; [1986] 59 Comp Cas 460 (SC), which laid down that the cost of packing necessary for making the goods marketable at the factory gate should be included in the value. The court stated, "The degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the 'value' of the article for the purpose of the excise levy."

The court concluded that if the packed condition in which the cigarettes are generally sold at the factory gate includes packing in corrugated fibre board containers, the cost of such packing must be included in the value for excise duty purposes. The court rejected the distinction between packing for sale and packing for transportation, emphasizing that the test is whether the packing is necessary for making the goods marketable at the factory gate.

2. Applicability of the Doctrine of Promissory Estoppel Against the Government:

The respondents also invoked the doctrine of promissory estoppel, arguing that they should not be liable for excise duty on the cost of corrugated fibre board containers based on a letter dated May 24, 1976, from the Central Board of Excise and Customs. This letter stated that the cost of such containers would not be included in the value of cigarettes for excise duty purposes. The respondents relied on this representation and did not recover excise duty attributable to the cost of these containers from the wholesale dealers.

The court acknowledged the doctrine of promissory estoppel, stating, "The true principle of promissory estoppel is that where one party has by his word or conduct made to the other a clear and unequivocal promise or representation...the promise or representation would be binding on the party making it and he would not be entitled to go back upon it."

The court found that the representation made by the Central Board of Excise and Customs, approved by the Central Government, was binding and created a promissory estoppel. The court noted, "It would be most inequitable to allow the excise authorities to assess excise duty on the basis that the value of the cigarettes manufactured by the respondents should include the cost of corrugated fibre board containers."

The court held that the respondents were entitled to the exclusion of the cost of corrugated fibre board containers from the value of cigarettes for excise duty purposes during the period from May 24, 1976, to November 2, 1982. However, beyond this period, the cost of such containers would be included in the value for excise duty assessment.

Separate Judgments:

Pathak J.: Agreed with the Chief Justice on promissory estoppel but disagreed on the inclusion of the cost of secondary packing. Pathak J. opined that the corrugated fibre board containers are not necessary for selling cigarettes in the wholesale market at the factory gate and should not be included in the value for excise duty.

Amarendra Nath Sen J.: Also agreed with the Chief Justice on promissory estoppel but dissented on the secondary packing issue. Sen J. held that the cost of packing cartons in corrugated fibre board containers, meant for facilitating transport, should not be included in the value for excise duty purposes.

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