TaxTMI 
TaxTMI 
2010 (7) TMI 21
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....r refund of the excess amount of excise duty paid by them as time barred as also on merits on account of disallowance of post manufacturing expenses for the purpose of valuation of the goods in terms of Section 4 of the Central Excise Act, 1944 (for short "the Act") as it existed at the relevant time. 2. The background facts, giving rise to this appeal, are as follows: The assessee was engaged in the manufacture of coated fabrics. The price of goods declared by the assessee in the price list, as required under Rule 173C of the Central Excise Rules, 1944 (for short "the Rules"), was approved by the Revenue from time to time. However, for the first time, in the two revised price lists, both dated 12th November 1980, the assessee i....
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....abrics. The Adjudicating Authority was of the view that the packing of coated fabrics in polythene bags for delivery to the customers located in Bombay as also packing of three such rolls in hessian cloth and stitching them into one bundle for dispatch to up-country customers was in the normal course of trade and, therefore, there was nothing special about such packing so as to exclude its cost from the value of the fabric. The Adjudicating Authority also held that the refund claim was barred by time. 3. On rejection of the claim, the assessee amended the writ petition in order to challenge the validity of order dated 12th April 1984. As stated above, the order of the Adjudicating Authority has been affirmed by the High Court. Rejecting ....
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....efund claim was beyond the period prescribed under the Act. Aggrieved, the assessee is before us in this appeal. 5. Vide order dated 31st March 2003, leave was granted limited to the question "whether the cost of secondary packing is to be included in the assessable value of the appellant's goods?" 6. We have heard learned counsel for the parties. 7. In support of the appeal, Mr. Jay Savla, learned counsel appearing for the appellant, submitted that the High Court as well as the Adjudicating Authority failed to appreciate the distinction between the primary and the secondary packing, as enunciated by this Court in Union of India & Ors. Vs. Bombay Tyre International Ltd. & Ors.{(1984) 1 SCC 467}. Learned counsel contended that admit....
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....t the fabric from damage during the course of transportation to up-country customers is includible in the assessable value of the coated fabric manufactured by the assessee for the purpose of levy of excise duty? 10. Section 4 of the Act, in so far as it is relevant for our purpose, reads as follows: "4. Valuation of excisable goods for purposes of charging of duty of excise.--(1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be-- (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade f....
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....unambiguous, yet the concept of "primary packing" and "secondary packing" was evolved by this Court in Bombay Tyre International Ltd. (supra). In that case, while observing that the degree of packing would vary from one class of excisable goods to another and the packing may be of different grades, which may be necessary to make an article marketable, it was held "that the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the "value" of the article for the purpose of the excise levy." Thus, the test laid down was that it is only the cost of packing ordinarily require....
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....whether the cost of wooden boxes, in which the cardboard boxes were packed, was to be included in the value of batteries and torches. It was held by a bench of three Judges of this Court that the wooden boxes were in the nature to secondary packing and, therefore, their cost was not includible in the value of batteries and torches. 15. In Hindustan Safety Glass Works Ltd. (supra) referring to the ratio of decisions in Bombay Tyre International Ltd. (supra) and Geep Industrial Syndicate Ltd. (supra), again a bench of three learned Judges summed up the test on the issue, as follows:- "14...The test is whether the packing is done in order to put the goods in a marketable condition. Another way of testing would be to see whether the....