9911796707
TMI Blog2005 (8) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... sold by the petitioner in "M.S. Barrels" to their buyers. This commodity is an excisable commodity and is thus governed by the provisions of Central Excise and Salt Act. 3.In Adjudication proceedings, a question arose before the Excise Authorities (A.O.) for consideration as to whether cost of packing materials i.e. "M.S. Barrels" is includable in thwe assessable value on the basis that the barrels are durable and returnable? The contention of petitioner (assessee) before the authorities was that it is not so includable by virtue of clause 10 of the invoice raised by the petitioner on their buyers. This contention was negatived by the A.O., Commissioner of Appeals and lastly, by the Tribunal by passing the impugned order, giving rise to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10-8-1999 (Annexure-D), passed by the CEGAT. 7.In my considered view, the law on the question which is involved in this petition no longer remains res integra and stands decided by several decisions of Supreme Court, referred supra by the learned Counsel for the parties. What differs is only its applicability to facts of each case. In the case of K. Radha Krishaiah (supra) their Lordships while interpreting Section 4(4)(d)(i) of the Central Excise and Salt Act held as under : "The only question which arises in this Special Leave Petition is as what is true meaning and scope of the word "returnable" in Section 4(4)(d)(i) of the Central Excise and Salt Act, 1944. If the packing is durable and returnable then its cost is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the contention of the petitioner that there was any such arrangement for return of the packing by the wholesale buyers to the petitioner nor is there any evidence to that effect. The Excise Authorities were, therefore, right in not excluding the cost of packing in determination of the assessable value of the goods. The Special Leave Petition will, therefore, stand rejected." 8.The aforesaid view was upheld and reiterated by the Supreme Court in the case reported in 1988 (36) E.L.T. 727 (Mahalakshmi Glass Works v. C.C.E) in following words : "As noted above, this Court has considered the meaning of the expression "returnable" in the Section in K. Radha Krishaiah's case (supra). This Court held that so far as the question of durabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement between the petitioner i.e. assessee and their buyer to return the barrel. When both the conditions i.e. durability and return of packing material is satisfied to exist by means of an agreement between the assessee and their buyer in relation to goods sold then in my opinion, the assessee is entitled to claim that the cost of packing material i.e. "M.S. Barrel" used by the petitioner in selling "Alkyed Resin" and "Melamine Formaldeydes Resin" should be excluded in computation of the assessable value of goods for the purpose of excise duty. In a case of this nature as held by their Lordships of Supreme Court physical capability of the packing to be returned is not a relevant criteria. What is required to be seen is, whether packin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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