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TMI Blog1990 (7) TMI 229X X X X Extracts X X X X X X X X Extracts X X X X ..... pellate Collector disposed of six appeals by one order, according to the practice prevailing in this Tribunal, the appellant filed five Supplementary Appeals alongwith the COD applications. The COD applications were heard and the delay in filing the Supplementary Appeals was condoned by us. Thereafter, the main appeal alongwith the Supplementary Appeals was heard and the order was reserved. 2. The brief facts leading to the issue of the review show cause notice under Section 36(2) of the Central Excises Salt Act, 1944 as it then existed are as follows. 3. The respondents are manufacturer of glass and glasswares. They cleared glass and glasswares on payment of central excise duly. They filed the following six refund claims on account of duty paid on the cost of packing materials :- Sl. No. Date of receipt of refund claim inAssistant Collector s office Period for which claim was preferred Amount 1. 28-11-1975 21-12-1973 to 27-2-1974 Rs. 29,362.96 2. 12-12-1975 1-3-1974 to 31-5-1974 Rs. 37,594.93 3. 1-1-1976 1-6-1974 to 30-9-1974 Rs. 24,763.22 4. 2-1-1976 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be examined by the Asstt. Collector. In view of the above infirmities in the impugned orders, I refer the matter back to the Assistant Collector for a de novo decision after observing principles of natural justice. Thereafter the Assistant Collector should pass a fresh speaking order. 4. Thereafter six show cause notices were issued by the Assistant Collector of Central Excise, Agra. The language of the show cause notices was more or less similar to the earlier one. It was alleged in the show cause notices that the respondents herein did not avail of the clearances of excisable goods under protest and the prices were declared by them of their own accord and that their refund claims were not received within the time-limit prescribed in the Rule 11 of the Central Excise Rules, 1944. They were asked to show cause to the Assistant Collector of Central Excise, Agra as to why their refund claims should not be rejected. The respondents submitted replies to the show cause notices. They also appeared for personal hearing before the Assistant Collector of Central Excise, Agra. In the written replies to the show cause notices as well as during the personal hearing before the Assistant Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that the respondents claim that duty was paid by them under protest was not acceptable. But the Assistant Collector did not discuss anything about the protest letter dated 20-12-1973, although the show cause notices were issued to the respondents proposing to reject their refund claims on the ground of time-bar. Instead, the Assistant Collr. stated that the present cases being identical in nature to their refund case of Rs. 20,744.44, decided vide Assistant Collector, Agra s adjudication order No. C.No. V(18)(23A)41-Ref/77/6345-46 dated 12-6-1979, which was pending before the Appellate Collector, Central Excise, New Delhi, the claims were rejected on the same pleas. 6. By the adjudication Order No. C.No. V(18)(23A)41-Ref/77/6345-46 dated 12-6-1979, the Asstt. Collr. rejected another refund claim of Rs. 20,744.44 filed by the M/s. Shanker Novelties Glass Industries on 26-12-1976 for the period from 1-7-1976 to 30-9-1976, which was received in the Office of the Assistant Collector of Central Excise, Agra on 31-12-1976. In reply to the show cause notice and during the personal hearing in that case, M/s. Shanker Novelties Glass Industries stated that from the very beginning t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, MOR I, Ferozabad, after considering the judgments of High Courts and the Supreme Court cited before him, the Appellate Collector held that secondary or special packings did not form part and the process of manufacture nor could they be considered as incidental or ancillary to the process of manufacture. He, therefore, held that the secondary packing charges could not be included in the assessable value under Sec. 4 of the Central Excises Salt Act. He allowed all the six appeals and set aside the Assistant Collector s orders, directing the latter to sanction the refund claims, if otherwise in order. 8. The impugned order-in-appeal of the Appellate Collector was reviewed by the Central Govt. under Section 36 of the Central Excises Salt Act as it then existed and issued a show cause notice dated 6-2-1982 proposing to set aside the impugned order and restoring the orders-in-original of the Assistant Collector of Central Excise. The grounds taken by the Central Govt. in issuing the said review show cause notice is that all the six refund claims were time-barred under Rule 11 read with Rule 173-J of the Central Excise Rules and that there was no evidence that they filed a lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... packing charges - O/R M/s. Shanker Novelties Glass Industries, Firozabad submitted a refund claim for Rs. 24,763.22 paise pertaining to the period from 1-6-1974 to 30-9-1974. It was rejected by the Asstt. Collector of Central Excise, Agra vide his C.No. V(23A)(18)-1-Ref/76/10724 dated 9-6-1976. The party filed an appeal against the said order to the Appellate Collr. of C. Excise, New Delhi, who referred back the matter to Asstt. Collector, Central Excise, Agra for a de novo decision after observing principles of natural justice. Consequent upon the aforesaid orders of the Appellate Collector, Central Excise, New Delhi a show cause notice C.No. V(18) (23-A) 1-Ref/824 dated 17-1-1978 was issued to the party asking them as to why their refund claim be not rejected under the provisions of Rule 11 of Central Excise Rules, 1944. The party in reply to the show cause notice submitted their defence statement dated 25th Jan. 1978 advancing the same arguments which they did in other cases of similar nature and further sought personal hearing. During the course of personal hearing on 16-10-1979 the counsel of the party Shri J.S. Kapil, Advocate argued that the cost of packings involved in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st letter dated 20-12-1973 was not received by the Department. The Asstt. Collector has not rebutted the respondents claim that the duty had been paid under protest. Further, in the impugned order, the Appellate Collector has given a categorical finding that the appellants before him paid duty from 20-12-1973 onwards under protest on the packing charges. In the face of these materials, we are unable to accept the allegation that there is no evidence indicating that the respondents had filed a letter of protest dated 20-12-1973. 11. So far as the question of including the cost of secondary packing in the assessable value of the respondents glass and glasswares is concerned, the issue is now well settled by Supreme Court judgment in the case of Hindustan Polymers (supra). It was held by the Hon ble Supreme Court that the cost of packing is not includible in the assessable value if the goods were marketable without being packed. In the case of Godfrey Philips (supra), the Hon ble Supreme Court held that the cost of secondary packing which are for protection of excisable goods during the transportation was not includible in the assessable value and that the cost of packing which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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