TaxTMI 
TaxTMI 
1994 (4) TMI 194
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....merits". 2. The stay application was heard on 24-3-1994, when Shri V. Lakshmikumaran, Advocate appeared for the applicants. The respondents were represented by Smt. C.G. Lal, S.D.R. 3. Shri V. Lakshmikumaran, the learned Advocate stated that the assessee's earlier stay application on identical facts had been allowed by the Tribunal. The matter related to the packing of torches and dry cells batteries, in corrugated boxes, before their despatch from the factory. He submitted that for the purposes of the present stay application, he adopted the same arguments as were advanced by him in the earlier stay application disposed of by the Tribunal under their Stay Order Nos. 03 to 05/94-A, dated 4-1-1994. 4. Smt. C.G. Lal, the learned SDR submitted that the matter was entirely covered in favour of the Revenue by the Hon'ble Supreme Court's decision in the case of Collector of Central Excise v. Ponds India Ltd. reported in 1989 (44) E.L.T. 185 (SC). She stated that there was no doubt that the corrugated box packing was their secondary packing, and its cost was includible in the value of the goods in question. Even when their stocks were stored within the factory prem....
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....r of such duplex board consumer packs were placed in a bigger corrugated carton. Depending upon the size/type of the goods big, small, medium, the number of duplex board consumer packs placed in the corrugated carton, and the size of the corrugated carton, varied. These corrugated cartons were embossed/printed with the manufacturer's name, trade mark, monogram, variety/quality of the goods, maximum price etc. The packing in the corrugated cartons was the packing which was necessary for putting these goods in the condition in which they were generally sold in the wholesale market. Even when the goods were stored in their approved godowns, they were stored packed in such corrugated cartons. Except in a single case of some local party, the goods were delivered from the factory as packed in such corrugated cartons. As per their terms and conditions of sale, this packing in cardboard/mill board cartons was their normal packing. Packing in wooden boxes was termed by them as their secondary/additonal packing. In their terms and conditions of sale, the nature of packing was stipulated as under : "Goods shall normally be delivered in the cardboard or mill board cartons. However, at the r....
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....artons in which a standard number of primary cartons, are packed. To quote; "Secondary packing is of different grades. There is the secondary packing which consists of larger cartons in which a standard number of primary cartons (in the sense mentioned earlier) are packed." They have held that: "the cost of secondary packing cannot be deducted from the wholesale cash price of the excisable article at the factory gate." 10.  The relevant terms and conditions of the sale to the distributors/wholesale dealers have already been extracted above. These terms and conditions provided that the goods could be further packed in wooden boxes - at the specific request, and at the cost of the purchaser. The Hon'ble Supreme Court in the appellant's own case Geep Industrial Syndicate Ltd. v. UOI - 1992 (61) E.L.T. 328 (SC) were concerned with this further packing in wooden boxes. The issue before the Apex Court was summarised as under : "The question arises only in regard to the wooden boxes in which the cardboard cartons are placed at the time of delivery at the factory gate." With regard to such wooden boxes in which the cardboard cartons were further placed, the Hon'ble Supreme Co....
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....he factory gate." 13.  Thus it seems apparent that the packing upto the stage of corrugated cartons in which duplex board retail packs were packed, was the packing employed in the ordinary course of sale by delivery in the wholesale market at the factory gate, and the cost of such packing was includible in the value of the excisable goods. 14. The applicants have referred to the Tribunal's interim/interlocutory order on their earlier stay application, and have pleaded that following that, this stay application should also be allowed. With due respects, in view of the above discussion leading to the prima facie conclusion that the cost of corrugated cartons was includible in the value of the goods in question, we fail to persuade ourselves to follow that interim order. As we have discussed above, the Hon'ble Supreme Court's decision in the applicant's own case was with regard to the further packing in wooden boxes which was considered as not necessary for putting the torches and the batteries in the condition in which they were generally sold in the wholesale market at the factory gate. Other cases quoted on behalf of the applicants in the earlier stay matter only re....