9911796707
TMI Blog1998 (8) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants is that they are entitled to the refund of duty which has already been recovered from them in respect of the value of the glass jars as they are durable in nature. The admitted position is that these glass jars are not returnable. It is also the admitted position that the value of the glass jars is also included in the unit price. This appeal as seen, has a chequered career. Ultimately the Collector (Appeals) in the impugned order after due consideration of the issue has held that the glass jar is a primary packing as per the decision in the case of Bombay Tyre International reported in 1983 (14) E.L.T. 1896 (S.C.) and the cost of such packing is to be included in the assessable value. He has noted that packing is essential fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning of the Assistant Collector in this regard. He has also noted that on the question of durability the appellants contend that as per the affidavit of Shri R.D. Shenoy, R D Manager, the tin containers earlier used by the assessee had been discarded because of the superior durability of glass jars which can be used for packing whereas tin containers cannot be re-used and that the dictionary meaning of the term glass and brittle cannot determine the durability and further these jars are re-used by consumers and there is no need that the re-use should be only by the manufacturers. The Collector (Appeals) has held that even without reference to the dictionary meaning or affidavit it is common knowledge that glass is susceptible for brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the wholesale dealers indicating returnability of the glass jars. They have produced 17 affidavits to state that they were aware of the condition of returnability. The learned Counsel submitted that the item glass jar is a primary packing and it is true that in terms of the judgment in the case of Bombay Tyre International the value of the primary packing is required to be added to the assessable value. His contention is that this does not flow from Section 4(4)(d)(i) of the CEA, 1944, but is only a precedent laid down by the Hon ble Supreme Court on an understanding of the Section. He likes to place reliance on the judgment of the Hon ble Supreme Court in the case of Mahalakshmi Glass Works v. CCE reported in 1988 (36) E.L.T. 727 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acking is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in certain packed condition, whatever may be the reason for such packing cost of such packing could be includible in the value of the goods for assessment of excise duty . The Hon ble Supreme Court also confirmed the earlier judgment in the case of Hindustan Polymers v. CCE reported in 1989 (43) E.L.T. 165 wherein it has been held that if in order to be able to put the excisable article in the market certain amount of packing or user of containers or wrappers or putting them either in drums or containers are required, then the value o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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