TaxTMI 
TaxTMI 
2010 (9) TMI 598
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....ting to the valuation dispute in the matter in hand relates to the period from 26-4-1973 to 30-11-1983. 3. In fact the dispute between the Department and the appellants in relation to the claim for deduction of various items including the one under consideration has a checkered history. However, for the purpose of dealing this matter, we need not go through the same. Suffice to observe that after two rounds of litigation, in this third round only issue which remains to be decided relates to the claim for deduction regarding the packing material in the form of gunny bags. 4. The ld. Advocate for the appellant placing reliance in the decisions of the Apex Court in the matter of GOI v. Madras Rubber Factory Ltd. reported in 1995 (77) E.L.T. 433 (S.C.) and UOI & Ors. Etc. v. Bombay Tyre International Ltd. etc. reported in 1983 (14) E.L.T. 1896 (S.C.) and drawing our attention to the order of the Assistant Collection of Central Excise, Madras dt. 11-4-1989 in appellants' own case, in relation to the factory situated at Madras, submitted that the authorities below failed to take note of the said order of the Assistant Collector wherein it was clearly held that the cost of pac....
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.... the Adjudicating Authority that "In the instant case, the goods are packed in the outer gunny in order to prevent tear and damage to the goods" and further that "the assessee has not adduced any evidence support of their plea that the goods are sold generally in polythene covers". Similarly even in the memo of appeal filed before this Tribunal, the same does not disclose any grievance either about the said finding by the Adjudicating Authority or any grievance regarding non-consideration of challenge to those findings by the Commissioner (Appeals). The only conclusion in circumstances which could be drawn is that there is no challenge by the appellants to the said findings by the Adjudicating Authority. In other words, as the records stands today the fact that the appellants' goods were packed in gunny bags to prevent tear and damage to the goods stands established. There is also no dispute that the appellants did not adduced any evidence in Support of their plea that the goods were sold generally in polythene covers. 9. Indeed perusal of the memo of the appeal before the Tribunal discloses that the entire challenge to the order passed by the lower authority was on the groun....
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....case. As already seen above in the case in hand, no such materials were available. Rather the appellants failed to adduce any evidence in support of their case. Clear finding in that regard has not been disputed. 12. The contention of the ld. Advocate for the appellant is that irrespective of failure on the part of the assessee to adduce any such evidence, once the Revenue authority in a case of the assessee has decided the issue on facts and the same had remained unchallenged, it is not open to the Revenue authorities to ignore the said finding in any subsequent case between the same assessee and the Department. It is difficult to accept this contention. Each case has to be decided on the basis of the facts of the case and the materials placed on record in that case. 13. In Madras Rubber Factory Ltd. case while laying down the test to determine whether the cost of packing material is includable or excludable from the assessable value, the Apex Court ruled thus, "It may be that in applying the principle having regard to the facts of a given case, there may be some divergence in conclusion but so far as the principle - the relevant test to be applied - is concerned, ther....
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.... Section 4(4)(d)(i) has made express provision for including the cost of packing in the determination of "value" for the purpose of excise duty, inasmuch as the case of the parties is that the new Section 4 substantially reflects the position obtaining under the unamended Act. We shall proceed on the basis that the position in regard to the cost of packing is the same under the Act, both before and after the amendment of the Act. Section 4(4)(d)(i) reads : "(4) For the purposes of this section - (d) "value", in relation to any excisable goods, - (i) where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is of a durable nature and is returnable by the buyer to the assessee. Explanation. - In this sub-clause "packing" means the wrapper, container, bobbin, pirn, spool, reel or warp beam or any other thing in which or on which the excisable goods are wrapped, contained or wound." It is relevant to note that the packing, of which the cost is included, is the packing in which the goods are wrapped, contained or wound when the goods are delivered at the time of removal. In other words, it is t....
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....n the authorities below to circumvent the law laid down by the Apex court in either of the above referred cases. Rather the authorities have followed the same in letter and spirit. 18. It was also sought to be contended that the authorities below erred in denying the benefit of deduction while holding that the packing material was neither returnable nor durable when in fact it was not the case of the assessee that it was either returnable or durable but the specific case was that it was a secondary packing. Undoubtedly the claim of the appellants before the Adjudicating Authority was that their product is usually sold in polythene covers and therefore the cost of gunny bags could not be included in assessable value and the specific challenge in the appeal before the Commissioner (Appeals) was that the packing of the excisable goods with the gunny bags was only a secondary packing to facilitate safe transportation. Being so, it cannot be disputed that from reading the orders passed by the lower authorities, it was sought to be contended on behalf of the appellants that the gunny bags packing was in a nature of secondary packing. As already pointed out above, the Adjudicating A....