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TMI Blog1994 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... f Items 33D and 33DD respectively of the Central Excise Tariff. The goods are assessable to duty on ad valorem basis. The appellants filed price lists and had claimed deductions on account of marketing and administration costs, finance costs, selling profits, and excise duty. In addition they submitted that packing is entirely to the account of the buyer and, therefore, does not form part of the assessable value and is, therefore, not shown in the price. The price lists were approved provisionally. After the pronouncement of the judgment by the Hon ble Supreme Court in the Bombay Tyre International case, the Assistant Collector proceeded to finalise the price lists and show cause notices had been issued which intended to disallow the deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not have had to incur these elements of cost, and their price would have been lower. There is also evidence of sales according to the general practice in the trade as seen in their sales to Public Sector Customers like LIC to whom higher discount had been offered on account of bulk orders. Such discounts, it was contended, should be allowed. It was submitted that for the price lists for the subsequent period, the Department had allowed such deductions. The learned Counsel also cited and relied upon the Tribunal decision in the case of Modi Zerox v. Collector of Central Excise - 1989 (40) E.L.T. 481, that sale even of one machine to a customer is sale in retail. In the same context, the learned Counsel cited Government of India order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. - 1989 (44) E.L.T. 185 wherein Supreme Court has held that the amount of packing cost necessary to make the goods marketable has to be included in the assessable value. It is not material, the learned Senior Departmental Representative contended, whether the packing is of secondary nature or that such packing is at customer s request. Hence, in this case as the goods are cleared in crates at the factory gate, their cost has rightly been included in the assessable value, submitted the learned Senior Departmental Representative. 4. The submissions made by both the sides have been carefully considered. On the question of determination of wholesale price from the retail price to buyers, it is seen that in the earlier order of the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elating to Rule 6(a), it has been stated that where the goods are sold by the assessee in retail, Rule 6(a) provides the authority for determination of value on the basis of the retail price after making suitable reduction. The amount to be reduced, says the instruction, should be such as to bring the net value in conformity with the price at which the assessee would have sold such goods in the course of wholesale trade to an unrelated buyer. It is further clarified that the amount to be reduced from the retail price may be determined keeping in view the margin of difference between the assessable value and the retail price of comparable goods, the assumption being that roughly the percentage of difference between the assessable value and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al packing for the purpose of safe transport. Then the goods are packed in a wooden case in addition to the wooden plank with or without polythene covering and the customer is charged extra for it. The appellants contend that such special packing at customer s request meant for safety of goods in transport, is not includible. Examining this issue it is seen that now it is well settled by the Supreme Court decisions on the subject including Collector of Central Excise v. Ponds India - 1989 (44) E.L.T. 185 (SC) = 1989 (21) Scale 849, the correct position is that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value. The Supreme Court further noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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