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TMI Blog2003 (12) TMI 399X X X X Extracts X X X X X X X X Extracts X X X X ..... packing, durable and returnable, consisting of wooden or iron pallets and plastic film wrapped against consignment each on the pallet. The department was of the view that the packing was neither durable nor secondary under Section 4(4)(d)(i) of the Central Excise Act, according to which the cost of packing of any excisable goods which are the goods delivered at the time of removal except the cost of packing which was durable or returnable nature was to be included in the assessable value of the excisable goods. On the above basis, total of 11 show cause notices covering the period from November, 1991 to August, 1994 were issued, details of which are annexed to this order. (Annexure A). In addition to the above, show cause notice dated 13-10-1994 raising a demand of Rs. 1,50,932.38 for the period June to August, 1994 was issued. The first 11 show cause notices were adjudicated by the Commissioner of Central Excise who confirmed the demands raised thereunder, rejecting the plea of the assessees that packing by used shrink film, stretch film on rolled laminated paper was secondary packing which was not includable in the assessable value and also rejecting the plea that the notice date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (147) E.L.T. 845]. The ratio of the Supreme Court judgment in the case of B.P.L. Ltd. v. CCE, Cochin [2002 (143) E.L.T. 3 (S.C)] relied upon by the S.D.R. is not applicable to the facts of the present case. In the case before the Supreme Court, the Collector held that the extended period of limitation was available in the light of the factual background that M/s. B.P.L. India Ltd. had not produced any evidence to show that they had declared to the department either by letter or through the documents, details of manufacture/clearance. The Collector s order was upheld by the Tribunal whose order was upheld by the Supreme Court. In the present case, however, the knowledge of the department regarding the claim for deduction of secondary packing charges from the assessable value existed as borne out from the issue of show cause notices within the normal period of limitation for prior periods and, therefore, suppression cannot be alleged against the appellants. Following the ratio of the Tribunal s order in the case of Neyveli Lignite supra , we hold that the demand covered by show cause notice dated 29-9-92 is barred by limitation. 5. In the result, we confirm the demand of Rs. 30,52 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92 2. HPCL/SCN/INSP3/91/dt. 24-8-1992 555994.76 Mar. 92 to July 92 3. V. Ch. 76(4)/Demand/92 dt. 29-9-1992 4502564.97 Sept. 87 to Oct. 91 4. CE/MP/INSP31/HPCL/90 dt. 14-12-1992 172097.24 Aug. 92 to Sept. 92 5. CE/MP/INSP31/HPCL/90 dt. 18-2-1993 275540.08 Oct. 92 to Jan. 93 6. CE/MP/INSP31/HPCL/90 dt. 16-6-1993 352302.01 Feb. 93 to May. 93 7. CE/MP/INSP31/HPCL/90 dt. 27-9-1993 216600.71 June 93 to Aug. 93 8. CE/MP/INSP31/HPCL/90 dt. 22-2-1994 264859.39 Sept. 93 to Nov. 93 9. CE/MP/INSP31/HPCL/90 dt. 25-3-1994 224037.75 Dec. 93 to Feb. 94 10. CE/MP/INSP31/HPCL/90 dt. 26-7-1994 112017.31 March 94 11. CE/MP/INSP31/HPCL/90 dt. 4-8-1994 123300.94 April 94 to May 94 8. The following difference of opinion is placed before the Hon ble President for reference to Third Member : Whether the demand covered by show cause notice dated 29-9-1992 is barred by limitation as held by Member (Judicial). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Joint Chief Departmental Representative attempted to argue as to the merits of the issue as to whether the packing should be said to be secondary packing at all. I advised him that it was not necessary to go into that question, as both the members were in agreement that the cost of packing did not quality for deduction, and the point that had been referred to me only concerned the extended period of limitation. He then contended that the member to whom the point of difference has been referred is required to solely consider the reasoning of the members who have disagreed upon the issue and it was not open to either side to raise fresh arguments in support of their respective contentions. 13. I am unable to subscribe to this view. What has been referred to the third member is whether the reasoning and conclusion of the Member (Judicial) or the reasoning and conclusion of the Member (Technical) has to be accepted. While doing so, it is open to that member to consider any argument that may be raised, so long as such an argument is based on material that was part of the record before the bench that heard the appeal. It is not contended that this material was not part of the record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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