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TMI Blog2006 (4) TMI 418X X X X Extracts X X X X X X X X Extracts X X X X ..... Engine. These engine are sold in two types of packing one ordinary in polythene packing and second wooden packing. According to the appellant the local sales at the factory gate are in ordinary polythene packing which were to the extent of 38.45% in 1997-98, 39.83% in 1998-99, 24.67% in 1999-2000 and 16.04% up to June, 2000. The balance sale was to outstation buyers and was in wooden packing. They were issued a show cause notice stating that since the majority of the goods are sold in wooden packing it has to be considered that the goods are ordinarily marketable in wooden packages and therefore the cost of the wooden packing is also required to be included in the assessable value. The show cause notice also relied upon on the statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd therefore it has to be concluded that the goods were ordinarily sold in polythene packing and not in wooden cartons and in view of the same the cost of the secondary packing is not includible in the assessable value. He places his reliance on the following decisions : (i) Subrabha Engineering Industries Ltd. - 2000 (122) E.L.T. 535 (T) (ii) Akay Cosmetices Pvt. Ltd. - 2000 (126) E.L.T. 763 (T) (iii) Antifriction Bearings Corporation Ltd. - 1999 (112) E.L.T. (561) (T) (iv) Gurind India P. Ltd. - 1999 (112) E.L.T. 1020 (T) (v) Hindustan Safety Glass Works - 1999 (112) E.L.T. 1054 (T) (vi) Shree Gobindeo Glass Works Ltd. - 1999 (114) E.L.T. 308 (T) (vii) Racold Appliances - 1994 (69) E.L.T. 0312 (T) (viii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods were ordinarily sold in the wooden packing more so when it is supported by the statement of the partners which clearly states that the diesel engine are marketable only in the wooden packing and sale in polythene packing were at buyer s request. He referred the decision of the tribunal in the case of Stallion Shox Ltd. - 1996 (85) E.L.T. 139 (Tribunal) in support of his contention. 9. We have considered the submission. We find that the issue regarding the inclusion of the secondary packing in the assessable value as has been considered by the Hon ble Supreme Court in the various cases and these decisions have been summed up in the case of Government of India v. Madras Rubber Factory Ltd. - 1995 (77) E.L.T. 433 (S.C.) wherein the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtner stated that the settled fact is that nearly 35% of the total clearance has been sold by them without wooden packing and therefore the established fact is that the I.C. Engine are marketable without wooden packing and hence the finding recorded in the statement that I.C. engine cannot be marketable without wooden packing may be treated as withdrawn. 11. The statement of the partners is therefore not relevant as they could not appreciate the meaning of the term ordinarily marketable. The decision cited by the learned J.D.R. refers to a case where the entire sale was at the factory gate and it was on their account, a view was taken that since the majority sales were in wooden cartons it has to be inferred that the goods are ordinarily ..... X X X X Extracts X X X X X X X X Extracts X X X X
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