9911796707
TMI Blog2010 (9) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... ukose, Advocate, for the Appellant. Ms. Sudha Koka, SDR, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President]. - Heard the ld. Advocate for the appellants and DR for the respondent. This appeal arises from order dt. 28-7-2003 passed by the Commissioner of Central Excise (Appeals), Bangalore. By the impugned order, the question as to whether the appellants are entitled for deduction of the expenses in relation to the packing material in the form of gunny bags from the assessment value has been answered against the appellants and the same is sought to assailed in the present appeal. The finding in that regard by the Original Authority viz. the Deputy Commissioner of Central Excise, Rajaji Nagar, Bangalore has also been adverse to the appellants. 2. The appellants are manufacturers of rubber products. The issue relating to the valuation dispute in the matter in hand relates to the period from 26-4-1973 to 30-11-1983. 3. In fact the dispute between the Department and the appellants in relation to the claim for deduction of various items including the one under consideration has a checkered history. However, for the purpose of dealing this matter, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessable value . 7. The Commissioner (Appeals), in the impugned order on analysis of the materials, has held that In the instant case, the packing material in question is the gunny bags which apparently cannot be used for packing for more than once in the normal circumstances and hence, the same cannot be called as durable in nature. Secondly, unlike in the cases of bottles in respect of aerated water, cylinders in respect of gases, metal containers in respect of paints and varnished etc., the gunny bags are neither returnable nor actually returned by the buyers to the appellant . 8. We have no advantage of perusing memo of appeal which was filed by the appellants against the order of the Adjudicating Authority. However, perusal of the impugned order does not disclose that the appellant had challenged the findings of the Adjudicating Authority that In the instant case, the goods are packed in the outer gunny in order to prevent tear and damage to the goods and further that the assessee has not adduced any evidence support of their plea that the goods are sold generally in polythene covers . Similarly even in the memo of appeal filed before this Tribunal, the same does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he marketing pattern of the product, I find that it is used for the convenience of transport in train and lorries and also to hold more number of pieces together. At no place of delivery, these goods are supplied with covering of gunny package. Moreover the product is generally examined by the customers, before purchase and they are taking in piecemeal in most of the cases and thereby the requirement in gunny packing is not at all an essential feature for the marketing of the product. In other words, the product in the normal course of trade is sold or delivered with the polythene covering alone and not with the gunny coverings............. 11. Plain reading of the above finding of facts would reveal that the same was arrived at on the basis of analysis of the materials place before the said authority in the said case. As already seen above in the case in hand, no such materials were available. Rather the appellants failed to adduce any evidence in support of their case. Clear finding in that regard has not been disputed. 12. The contention of the ld. Advocate for the appellant is that irrespective of failure on the part of the assessee to adduce any such evidence, once the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the assessee in that case, that itself may not be sufficient to decide each such subsequent case by the same assessee and every case between the same assessee and Department, even in relation to the same subject matter, has to be decided on factual situation of that case which may differ, unless otherwise established. Law in this regard being clearly settled and explained by the Apex Court in Madras Rubber Factory Ltd. case, we find no fault with the finding arrived at by the authorities below on basis of the facts placed on record which clearly revealed absence of relevant evidence being produced by the appellants. 15. The Apex Court in Bombay Tyre International Ltd. etc. case in para 51 of the decision had held thus, 51. The case in respect of the cost of packing is somewhat complex. The new Section 4(4)(d)(i) has made express provision for including the cost of packing in the determination of value for the purpose of excise duty, inasmuch as the case of the parties is that the new Section 4 substantially reflects the position obtaining under the unamended Act. We shall proceed on the basis that the position in regard to the cost of packing is the same under the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the value of the article for the purpose of the excise levy. To that extent, the cost of secondary packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate. 16. In fact it is the same test which was laid down by the Apex Court in Bombay Tyre International Ltd. case that was reiterated by the Apex Court in Madras Rubber Factory Ltd. case while observing that the test laid down in Bombay Tyre International has never been departed from in any of the later decisions and must be treated as good and sound . 17. We do not find slightest attempt on the authorities below to circumvent the law laid down by the Apex court in either of the above referred cases. Rather the authorities have followed the same in letter and spirit. 18. It was also sought to be contended that the authorities below erred in denying the benefit of deduction while holding that the packing material was neither returnable nor durable when in fact it was not ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
