1987 (12) TMI 150 - AT - Central Excise

Summary

Issues:
- Dispute over exclusion of cost of cartons and gunny bags as durable and returnable containers under Section 4(4)(d)(i) of the Central Excises and Salt Act, 1944.

Analysis:
1. The dispute in this appeal revolves around the appellants' claim to exclude the cost of cartons and gunny bags as durable and returnable containers, falling under Section 4(4)(d)(i) of the Central Excises and Salt Act, 1944, for the period from 1-1-1978 to 31-12-1984. The appellants, engaged in manufacturing glass bottles, delivered their products in two types of packing: open crates and cartons/gunny bags. The open crates were returnable to the appellants within 30 days, with the cost not included in the assessable value. However, the cost of cartons and gunny bags, which were also claimed to be returnable, was disputed by the department. The crux of the issue lies in the inclusion of the cost of these packings in the assessable value.

2. The appellants argued that the cartons and gunny bags were returnable and were, in many instances, actually returned and re-used. The department, while not commenting on the durability of these packings, contested their returnability. The Tribunal referred to a Larger Bench judgment concerning the returnability of durable containers, emphasizing that returnability must be a term of sale either by contract or statute. The Tribunal scrutinized the appellants' standard contract clause, which mandated the return of "packing cases" in good condition within 30 days, but concluded that this clause pertained only to the crates provided by the appellants, not the cartons and gunny bags. The absence of a contractual obligation for the return of these packings, coupled with no agreed amount to be paid upon return, led the Tribunal to rule that the cartons and gunny bags were not returnable as per the accepted definition.

3. The appellants contended that the authorities lacked jurisdiction to inquire into whether any refund of the packing cost was agreed to and paid. However, the Tribunal rejected this argument, asserting that since the statute mandated returnability, the authorities were obligated to assess whether the transaction met the returnability criteria set by higher court judgments. The appellants' assertion that the mere fact that the packings were sometimes returned should suffice was dismissed by the Tribunal, which held that without a clear contractual provision for return and payment upon return, the packings could not be deemed returnable. Consequently, the appeal was dismissed by the Tribunal, upholding the department's position on the inclusion of the cartons and gunny bags' cost in the assessable value.