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TMI Blog1990 (8) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (4)(d)(i) prescribes that value in relation to any excisable goods, where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing, except the cost of packing, which is of a durable nature and is returnable by the buyer to the assessee. The petitioners pack Vanaspati and refined oils in 30 gauge tin coated steel plate containers of 18 litres capacity. 2. On November 1, 1978 the petitioners issued a circular to all Wipro stockists intimating that the tin plate is rapidly becoming a scarce commodity in India and supply of the containers is reduced to a substantial degree. The tin plate prices were also escalating at an alarming rate. The circular recites that the industry practice in exist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners by letter dated February 27, 1979 that the petitioners will have to satisfy the respondents that the prices declared on the gate passes do in fact present the value as determined under Section 4 of the Act. The petitioners were called upon to produce requisite evidence in support of their contention that the containers were durable and were returnable. The petitioners sent their reply on March 5, 1979. By letter dated April 7, 1979 the Superintendent, Central Excise, pointed out to the petitioners that the petitioners had failed to produce any evidence to establish that the containers were in fact returned to them. By letter dated April 28, 1979, copy of which is annexed as Exhibit 'B' to the petition, the Superintendent, Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 7.65 per tin provided the container is in good condition. The learned counsel urged that the fact that the containers are durable and returnable is also reflected from paragraph 4 of the return filed by Jitendra Chaturvedi, Assistant Collector of Central Excise and Customs, Jalgaon Division, and sworn on April 21,1984. In paragraph 4 of the return it is claimed that as per the data available with the excise authorities the petitioners have sold as many as 80 lakhs containers since 1978 and the containers received back are 4303. The return claims that the circular issued by the petitioners cannot be claimed to be a term of sale offered to every customer. The return claims that there is no material to indicate that such circular was is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the packing to be returned which is the determining factor because, in that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. The actual return or extent of return has no relevance. What is necessary is that if the buyer chooses to return the packing, the seller should be obliged to accept it and refund the stipulated amount. In the present case there was no evidence of the agreement tha the cartons and gunny bags were returnable, the cost thereof is not excludible as that of durable and returnable packing." It is obvious from the decision of the Supreme Court that the actual return or extent of return has no relevance while determining whether the cost of packing, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intendent of Central Excise should ascertain the amount of refund of differential duty payable to the petitioners from December 5, 1978 till the date of filing of the petition. The Superintendent of Central Excise should determine the amount of refund of duty payable after ascertaining what is the actual price or the value of the tin containers at the time it left the factory gate. The Superintendent of Central Excise should call upon the petitioners to produce evidence to establish the value of the tin containers at the time of leaving the factory gate and thereafter compute the assessable value of the goods and then ascertain what amount of refund is payable to the petitioners. The Superintendent of Central Excise is directed to determine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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