2002 (5) TMI 94 - AT - Central Excise

Summary

Issues Involved:
1. Clubbing of the value of manufacture for determining eligibility for small scale exemption u/s Notification No. 9/98.
2. Inclusion of the cost of packing material in the assessable value.
3. Reduction of penalty imposed.

Summary:

1. Clubbing of the Value of Manufacture:
The primary issue was whether the value of manufacture of M/s. Superior Pet Pvt. Limited and M/s. Superior Products should be clubbed for determining eligibility for small scale exemption u/s Notification No. 9/98. The Commissioner held that both units should be considered as one manufacturer due to common management by Mrs. Rita Dutta. However, the Tribunal found this reasoning flawed, emphasizing that juridical persons like companies and partnerships are separate entities. The Tribunal noted that common management does not equate to a single manufacturer and that the Commissioner's finding ignored the legal distinction between the entities. The Tribunal concluded that treating Mrs. Rita Dutta as the manufacturer in both units was erroneous and unsustainable, thus allowing the appeals of the assessees.

2. Inclusion of the Cost of Packing Material:
The Revenue appealed against the exclusion of the cost of packing material from the assessable value of pet bottles. The Tribunal referenced the Supreme Court decision in Hindustan Polymers v. CCE, which established that the value of packing materials supplied by the buyer is not includible in the assessable value of the goods packed in such packing. The Tribunal found no merit in the Revenue's contention that this decision only applies to secondary packing, thus rejecting the Revenue's appeal on this ground.

3. Reduction of Penalty:
The Revenue also contested the reduction of penalty in the case of M/s. Superior Products. Given the Tribunal's findings that there was no short levy, the issue of penalty reduction became irrelevant. Consequently, the Revenue's appeal on this ground was also rejected.

Conclusion:
The Tribunal allowed the appeals of the assessees and Mrs. Rita Dutta, rejecting the Revenue's appeal on all grounds.