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TMI Blog2009 (11) TMI 750X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and also the issue will become clear. 2. Dates Events : April, 94 to November, 94 : Respondents are engaged in the manufacture of glass. Glass sheets manufactured by the respondents are cleared by them on payment of duty. The respondents were paying Excise duty after claiming deduction on account of the cost of secondary packing i.e. wooden crates in which the glass sheets were packed and cleared as per the requirement of the customer. Three show cause notices were issued to the respondents for the period Apr., 94 to Nov., 94, proposing to disallow deduction on account of secondary packing. 29-2-96 : Vide OIO No. 03/Demand/96 passed by the Assistant Commissioner of Central Excise, Ankleshwar confirming the proposal in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the duty under protest on value of secondary packing after issuance of OIA dated 28-9-00. The respondents also filed refund application for the duty paid under protest for the period Mar., 96 to Sept., 99. 16-10-2000 : Show cause notice was issued to the respondents rejecting the refund claim filed by them for the period Mar., 96 to Sept., 99. 22-2-01 : Learned Deputy Commissioner of Central Excise vide OIO dated 22-2-01 rejected the refund for the period Mar., 96 to Sept., 99 on the ground that the cost of secondary packing is not eligible for deduction. It was held that duty was not paid under protest. The aforesaid order dated 22-2-01 was challenged by the respondents before the Commissioner (Appeals). 28-2-01 : Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. A/1917/WZB/AHD/2008 [2009 (238) E.L.T. 201 (Tri.-Ahmd.)] 12-10-08 : The appeal filed by the Department against OIA No. RS/120-121/SRT-II/2006 was rejected by the CESTAT vide Order No. A/2309/WZB/AHD/2008 [2009 (238) E.L.T. 133 (Tribunal)] 28-11-07 : Pursuant to OIA No. RS/116/SRT-II, learned Commissioner sanctioned refund for the period Mar., 96 to Sept., 99. 3. It was contended by learned SDR on behalf of the Revenue that the claim of the appellant that secondary packing was provided only in case of the goods cleared to customers located at distant places at their request and the same is not provided in all the cases and therefore the same is not includible in assessable value, is not correct in view of the fact that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the duty under protest since the Department had gone in appeal against the order of the Commissioner (Appeals). Further, he also submits that the payment of duty under protest in absence of an order against them also was in accordance with the law in view of the Larger Bench decision in case of M/s. Ashok Leylands - 1987 (29) E.L.T. 530 (Tri.). 5. We have considered the submissions made by both sides. As rightly pointed out by the learned advocate for the respondent, the period for which the refund has been claimed is sandwiched between the periods in respect of which the matter has attained finality as regards inclusion of cost secondary packing in the assessable value. No doubt, the decision of Hon ble Supreme Court in case of M/s. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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