1984 (8) TMI 81 - HC - Central Excise

Summary

Issues Involved:
1. Inclusion of secondary packing charges in the assessable value for excise duty.
2. Validity and jurisdiction of show cause notices issued by the Central Excise authorities.
3. Applicability of the Supreme Court's decision in Union of India v. Bombay Tyre International Ltd.
4. Limitation period for issuing show cause notices u/s 11A of the Central Excises and Salt Act, 1944.

Summary:

1. Inclusion of Secondary Packing Charges in Assessable Value:
The petitioners manufacture refrigerators classified under Item 29A of the First Schedule to the Central Excises and Salt Act, 1944. They sell these refrigerators to wholesale dealers in Bombay and outside Bombay. For sales outside Bombay, the refrigerators are packed in special secondary packing, and a separate charge is levied for this packing. The petitioners argue that this secondary packing is neither essential nor necessary for marketing the refrigerators in the wholesale market and, therefore, its cost should not be added to the wholesale price for excise duty calculation. The Appellate Collector upheld this view, excluding the value of secondary packing from the assessable value.

2. Validity and Jurisdiction of Show Cause Notices:
Several show cause notices were issued to the petitioners, requiring them to include the value of secondary packing in the assessable value and to recover excise duty accordingly. The petitioners challenged these notices, arguing that the issue was already concluded by the Appellate Collector's order dated 28th October 1980, which became final and binding. The court held that the earlier order was binding on the Department, and it was not open to the respondents to issue these show cause notices.

3. Applicability of Supreme Court's Decision:
The respondents contended that the show cause notices should be examined in light of the Supreme Court's decision in Union of India v. Bombay Tyre International Ltd. However, the court noted that the show cause notices were issued before this decision and pertained to a period before the decision. The court held that the validity of the show cause notices must be judged based on the law as it stood at the time of their issuance, and no retrospective change in law had taken place.

4. Limitation Period for Issuing Show Cause Notices:
U/s 11A of the Central Excises and Salt Act, 1944, show cause notices must be issued within six months from the relevant date. The court found that a substantial portion of the claims in the show cause notices was barred by limitation. Therefore, the show cause notices were without jurisdiction and void.

Conclusion:
The court ruled in favor of the petitioners, stating that the value of secondary packing should not be included in the assessable value for excise duty purposes. The show cause notices were declared without jurisdiction and void. The respondents were ordered to pay the petitioners' costs.