9911796707
TMI Blog2004 (5) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. They have collected Rs. 50/- per MT as packing charges and Rs. 13/- per MT as handling and forwarding charges from the customers of the cement, declaring ex-factory price for assessment as Rs. 240/- per MT. The department added value of packing charges and the assessment was done on Rs. 290/- per MT during the relevant period from 27-9-1974 to 30-9-1975. The appellants have claimed that Rs. 50/- per MT which was described as packing charges is the cost of gunny bags which are returnable and it should be deducted from the assessable value. They had gone up to the Supreme Court in Civil Appeal No. 2975/84 and the Supreme Court remanded the matter back to the Original Authority for disposal on the basis of principles enunciated by the Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its distribution was ordered by the Cement Controller of Government of India under the Ministry of Industrial Development. There was a condition to preserve empty cement bags by the buyer in serviceable condition and return them to the factory of origin or its collecting agent on payment. The Commissioner (Appeals) holding that the Tribunal judgment in case of ACC Ltd (supra) cannot be applied in the instant case because there is no agreement between the appellants and the buyers for returning the gunny bags and no bags have been returned on account of such an agreement and there is no evidence of refund of the packing charges to the buyers of the Cement, is not correct. The Tribunal in case of ACC Ltd. (supra) has clearly mentioned that re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved that - "The question is not for what purpose, a particular kind of packing is done but the test is whether a particular packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment of excise duty." and in case of Union of India Ors v. Godfrey Philips India Ltd., the Supreme Court (Majority Judgment) held - "if a particular packing is not necessary for putting the excisable goods in the condition in which they generally sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king of cement in the gunny bags is primary packing and as per Section 4 of the Central Excise Act, 1944 if the goods are cleared from the factory gate in the packed condition, the cost of such packing is includible in the assessable value. In the instant case, the cement was invariably sol in the market in packed condition and it was inconceivable to sell the cement without packing in the gunny bags in the wholesale market. Gunny bags, by no stretch of imagination, be considered as durable and returnable in nature in terms of Section 4(4)(d)(i) of the Central Excise Rules, 1944. Cylinders used for packing cooking gas, Industrial gases like Dissolved Acetylene, Oxygen etc., are of durable and returnable nature. Similarly, aerated water bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not throw any light if there was any agreement between the appellants and the buyers of the cement for return of bags. As per Cement Control Order, the appellants can purchase the goods from the person who has no relation with the goods. In the impugned order, the Commissioner (Appeals) has clearly mentioned that in their General Ledger page Nos. 116 to 119 and 121 relating to the period from 9/74 to 8/75, the entries made therein represent the purchase of second hand gunny bags but they could not establish that there was an agreement between them and the buyer of cement for return of gunny bags. No bag has been returned on such an agreement. No evidence regarding the refund of packing charges has been produced by the appellants. There ..... X X X X Extracts X X X X X X X X Extracts X X X X
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