2015 (10) TMI 2068

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....er the agreement with the said party. After receiving the material M/s Sunshine Cosmetics would sell the special packing in the market and remit the sale proceeds to the appellant. The appellant had received Rs. 5,96,475/- as such sale proceeds. The appellant have paid excise duty amounting to Rs. 1,13,070/- on the said amount received from the buyer. A demand notice was issued to the appellant seeking to include the value of the boxes in the assessable value. The total value of the boxes was ascertain as Rs. 13,51,542/- and a duty of Rs. 3,06,886/- was demanded on the same. It was alleged that the value of goods cleared by them did not include the cost of packing material as required under clause (d) of subsection (4) of erstwhile Section ....

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.... is not used for other buyers. Since the nature of the special packing, claim to be secondary packing by the appellants, has not been disputed in the order in appeal, it has to be treated as secondary packing. The issue of secondary packing has been dealt by Hon Apex Court in case of Bombay Tyre International Ltd. (1983 (14) ELT 1896 (SC) where it has observed as follows: "51. The case in respect of the cost of packing is somewhat complex. The new 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 pro....

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....pper or in a tin container, must be regarded as falling within Section 4(4)(d)(i). That is indeed conceded by learned counsel for the assessee. It is the cost of secondary packing which has raised serious dispute. 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. The large cartons may be packed into even larger cartons for facilitating the easier transport of the goods by the wholesale dealer. Is all the packing, no matter to what degree, in which the wholesale dealer takes delivery of the goods to be considered for including the cost thereof in the "value"? Or does the law require a line to be d....