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TMI Blog1992 (8) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... an average basis. 1.2 The Assistant Collector after due adjudication in his order-in-original No. 12/AC/VAL/CH/87, dated 2-11-1987 has held as follows in respect of the various deductions as mentioned above :- (I) Deduction at the rate of 10% of duty actually paid or payable to the department is only permissible. Deduction at the rate of 20% is not permissible. (II) It has been held that Wooden packing for electronic typewriter manufactured by the appellant is essential for making them marketable and the assessee had not produced any evidence that the said wooden packing was actually returnable as per the sale agreement. It has also been held that typewriters are normally being sold in wooden packing. Hence deduction not permissible. (III) Daizy Wheel, Carbon Ribbon and Correction Tape are essential components of an electronic typewriter. It has also been held that these articles are being supplied with the electronic typewriters. Hence the deduction is not permissible. (IV) Installation Charges This deduction is also held impermissible inasmuch as the price is for delivery at the factory gate or at the Branch Office and no installation expenses are incurred by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly to the buyers/consumers and not through the dealers. Thus, there has been a loss of duty to the extent of Rs. 1,368.28 on this account. 1.5 The Additional Collector on due adjudication vide his order dated 31-1-1991 has confirmed the demand of Rs. 69,066.71. Reasoning of the Additional Collector in the said Order, which is now impugned before the Tribunal, is more or less the same as that of the Assistant Collector, as set out above, in respect of the latter s order on the price list. 2. Learned Consultant, Shri A.S. Sunder Rajan, has submitted the arguments in respect of various deductions now claimed by the appellant :- 2.1 In the first instance he has not pressed for deduction of 20% rate of duty from the prices on the basis of Tariff rate as against the permissible rate of 10% which is actually paid or payable by the appellant. In other words, he has dropped this point as not pressed before the Tribunal. The finding of the lower authorities on this aspect is, therefore, confirmed. Even on the face of it such a plea was not tenable in view of the specific explanation added to Section 4(4)(d)(ii) by the Finance Act, 1982 with retrospective effect from 1-10-1975. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and as such the cost of such packing is includible. We have heard the learned Consultant as also the learned JDR. We are of the view that the factual position on this point is not quite clear. It has been held to be essential packing because the transportation of the goods is not possible without it. This is not a correct approach as held by the Supreme Court in the case of Collector of Central Excise v. Ponds India [1989 (44) E.L.T. 185]. What has to be seen is whether wooden packing in the instant case is necessary for putting the goods (electronic typewriters) in the wholesale market at the factory gate. In the absence of such an examination it is difficult for us to give any categorical finding on this issue either way. Hence, we remand the matter to the adjudicating authority so far as the question of inclusion of wooden packing in the value of excisable goods i.e. ETW is concerned. (II) Installation charges : Charges towards these have been disallowed on account of the finding that the goods are sold at the factory gate; installation is not done in each and every case and further the ETW does not require special installation. These charges are essentially in the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken away. It is in our view an essential part of ETW. Value of the same would, therefore, have to be included. Carbon Ribbon and Correction Tape, on the other hand, are in the nature of consumable goods of an ETW like petrol is for a motor vehicle. These cannot be considered as parts of ETW. Accordingly, we hold that value of daizy wheel should be included in determining the value of ETW whereas the value of Carbon Ribbon and Correction Tape should not be included while determining the value of ETW. Lower authority s findings are modified accordingly on this aspect. Learned Consultant has relied upon Tribunal s decision in 1988 (34) E.L.T. 662 [Diamond Clock Mfg. Co. Ltd.] and Bombay High Court s decision in the case of Kosan Metal Products Pvt. Ltd. [1961 (8) E.L.T. 725 (Bom.)] in support of his contention that even if the items are considered to be essential for the functioning of ETW, their values should not be included. We are afraid that the above ratio does not flow from the said decisions. Tribunal has held the value of certain items as not includible, in Diamond Clock, on the ground of non-supply of the items with the machine. They have held that in view of the inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d)(ii) clearly states that value in relation to any excisable goods does not include the amount of ........sales tax and other taxes, if any, payable on such goods. It is, therefore, clear that payability of a tax before its deduction can be claimed in terms of Section 4(4)(d)(ii) is important. Admittedly Central Sales Tax claimed for deduction is not payable by the appellant. It is immaterial whether the non-payability, has arisen on account of any exemption notification issued by State Government or otherwise. Hence its deduction is not permissible from the value of the excisable goods. (VI) Freight Forwarding Charges There is a conflict of findings between the Additional Collector and that of the Assistant Collector on this issue. The Additional Collector has found that these charges are neither equalised nor uniform and hence these are not deductible. The Assistant Collector while dealing with the price list, on the other hand, has found that these are deductible and therefore, he has allowed deduction on account of freight subject to production of evidence in this regard and subject to its verification by the Range Superintendent. We agree with the findings of the Assistan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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