1990 (5) TMI 122

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....s were that packing is not a process of manufacture and that these packings were of durable nature and were returnable by the buyer to the assessee and hence their cost is not includible in the assessable value of the fabrics. Both the contentions were rejected by the Collector (Appeals). He held that the packing in this case formed an integral part of the manufacture itself and as such its cost was includible in the assessable value of the fabrics. He relied on the judgment of the Allahabad High Court in the case of Geep Industrial Syndicate Ltd. (formerly Geep Flash Light Industries Ltd.) v. Union of India and Another in CMWP No. 370/79 decided on 4-2-1982 [reported in 1982 (10) E.L.T. 857 (All.)]. On the second contention of the appellan....

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....removal in packed condition, the assessable value of such goods should include the cost of such packings, except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. In the case of Collector of Central Excise v. Pond's India Ltd. decided on 19-10-1989 and reported in 1989 (44) E.L.T. 185 (S.C.), it was held by the Hon'ble Supreme Court that the cost of packing done for making the goods marketable is includible in the assessable value of the excisable goods and that the real test is not the packing in which goods are capable of being sold in wholesale trade but the packing in which they are generally sold. In the said case the Hon'ble Supreme Court considered their earlier judgment in the case ....

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.... to be returned which is the determining factor because, in the event, the words "by the buyer to the assessee" need not have found a place in the section they would be superfluous. What is required for the purpose of attracting the applicability of the exclusion clause in Section 4(4)(d)(i) is that the packing must be returnable by the buyer to the assessee. The question which has to be asked in each case is : Is the packing in this case returnable by the buyer to the assessee and obviously it cannot be said that the packing is returnable by the buyer to the assessee unless there is an arrangement between them that it shall be returned. Here in the present case if is not the contention of the petitioner that there was any such arrangement ....