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TMI Blog1984 (6) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... s, cartons or wooden cases, inclusive of excise duty and other particulars of rebate, discount etc. were also indicated. This list, as submitted by the party, was approved by Range Superintendent on 28-3-1970, and thereafter the appellants went on paying excise duty on the total value of goods as per this price list, which covered the cost of the packing also. It seems, however, that at some stage the party agitated against the inclusion of the cost of packing material in the assessable value of the goods manufactured by them which matter was adjudicated by the Deputy Collector of Central Excise by order dated 14-12-1971 passed in appeal, holding that :- Biscuit is such a commodity that its sale in packed condition is essential for hygienic and other reasons. The usual and most common form of packing is with paper, covered with cellophane paper. As such, the assessable value of biscuits should include such packing. Some time, Biscuits are sold in card-board containers as well as tin containers, which are non-returnable. In such cases also, the cost of packing viz. card-board cartons and Tin containers, shall be included in the assessable value. Cost of returnable tin conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish the same for want of necessary accounts, in this regard and added that in some cases, the packages under reference, may not be actually returned, and the buyers may dispose them of having paid extra for them, at their own end, in order to have immediate realisation of their investment in this regard. 6. The refund claim was eventually decided by the Assistant Collector by his order dated 24-4-1973 (Annexure E) disallowing the refund claim on the view that sole basis of the party s claim was the Order-in-Appeal passed by the Deputy Collector dated 14-12-1971, but said order postulated that the packing material should be returnable , which implied that they ought to have been actually returned, whereas the party had failed to satisfy the Superintendent in spite of having been called upon to do so, and had impliedly stated that the containers had not been returned to the factory as it was not economical from the business point of view to do so. He thus held that the price of the containers which had not been returned to the manufacturers, had to be included in the assessable value and as such the refund claim of M/s. Lucky Biscuit Co. (appellants herein) was not justified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the duty, right from the beginning qua this part of the cost, under protest and denied having conceded during personal hearing before the Appellate Collector that their products; namely, biscuits, required packing in air-tight tin containers or wooden boxes to preserve the quality of biscuits after the primary packing in cellophane or polythene papers or small decorative tins. It was thus denied that appellants products were not capable of being marketed or sold in simple cellophane, polythene or paper packing. They reiterated their plea that only cost of manufacturing of the product as well as the essential primary packing could be included in the assessable value, and that whatever duty was paid on the price of the packing which they called to be secondary packing, was refundable. 9. It is this revision petition, which on being received by transfer by virtue of provisions of Section 35P(2) of the Central Excises and Salt Act, 1944, is being treated and disposed of as an appeal. 10. During hearing, Shri Gopal Prasad, Consultant, appeared for the appellants whereas respondent was represented by Shri Mahesh Kumar, SDR. At the outset, Shri Gopal Prasad wanted to file a copy of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... occasioned their protest, resulting in the Order-in-Appeal passed in the first instance by the Deputy Collector on 14-10-1971. Nevertheless, that order did not ipso facto grant them refund nor gave any scope for the interpretation that cost of such containers or boxes being cartons was not to be included in the assessable value. 12. We have given our careful thought to this contention of the appellant but we do not find it tenable. Shri Gopal Prasad, no doubt, introduced the concept of returnable packing but, as rightly pointed out by Shri Mahesh Kumar placing reliance on a Full Bench authority of Gujarat High Court that the term returnable implied even though not actually returned but at least the existence of an agreement between the buyer and the seller that the packing, which is considered durable , would be returned and in that event the cost as indicated in the price list turns out only a sort of Security for the return of packing. This authority : 1982 E.L.T. 821 (Guj.) in the case of Ahmedabed Mfg. Calico Prtg. Ltd, and Others v. Union of India, obviously is a later authority as compared to the Division Bench Judgment of Madhya Pradesh High Court at Jabalpur, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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