Secondary packing for transport protection is excluded from assessable value; protest letters preserve refund claims against limitation.

Wooden secondary packing used only to protect goods during transport was excluded from assessable value because the relevant test is whether the packing is ordinarily used for wholesale sale at the factory gate and is necessary to place the goods in their normal sale condition. Since the goods were ordinarily sold in polythene packing and wooden crates were used only for outstation buyers, the packing cost was not includible. Letters of protest were sufficient to treat duty as paid under protest, and failure to file a detailed representation under Rule 233B(5) did not alter that character. The refund claim was therefore not barred by limitation and remained admissible.

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Issues: (i) Whether the cost of wooden secondary packing was includible in the assessable value of the goods. (ii) Whether the refund claim was barred by limitation on the ground that the duty was not paid under protest.

Issue (i): Whether the cost of wooden secondary packing was includible in the assessable value of the goods.

Analysis: The applicable test is whether the packing is the one in which the goods are ordinarily sold in the wholesale market at the factory gate and whether it is necessary to put the goods in the condition in which they are generally sold. The goods were sold at the factory gate in polythene packing, while wooden crates were used only for outstation buyers to protect the goods during transport. The partner's statement was subsequently clarified by affidavit and could not override the established sale pattern.

Conclusion: The cost of wooden secondary packing was not includible in the assessable value, in favour of the assessee.

Issue (ii): Whether the refund claim was barred by limitation on the ground that the duty was not paid under protest.

Analysis: Once the assessee had filed letters of protest and had contested inclusion of the packing cost, the duty had to be treated as paid under protest. Non-filing of a detailed representation under Rule 233B(5) of the Central Excise Rules, 1944 did not change the character of the payment or justify denial of refund on limitation.

Conclusion: The refund claim was not barred by limitation and was admissible, in favour of the assessee.

Final Conclusion: The exclusion of wooden secondary packing from assessable value entitled the assessee to refund, and both appeals succeeded.

Ratio Decidendi: Secondary packing is excluded from assessable value when it is used only for transport protection and the goods are ordinarily sold at the factory gate without such packing; a protest against duty payment is not negated merely by omission to file a detailed representation.

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