TaxTMI 
TaxTMI 
2024 (2) TMI 1078
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....al assessment confirming the demand of Rs. 3,01,72,409/- is also legally not sustainable. Being aggrieved, the Revenue has filed the present Appeals before the Tribunal. 2. The Learned AR reiterates the grounds taken by the Revenue in their Appeals. He submits that the Respondent have not been in a position to provide adequate evidence to establish their claim regarding the secondary packing being provided only as per the request of their customers. Therefore, he prays that the present Appeals may be allowed. 3. The Learned Advocate appearing on behalf of the Respondent relies on the detailed findings given by the Commissioner (Appeals) while arriving at his conclusion. He also submits that the issue is squarely covered by the judgment of the Hon'ble Supreme Court in the case of Union of India & Ors, Vs. Bombay Tyre International Ltd.-1983 (14) E.L.T. 1896 (S.C.) & Union of India & Others Vs. Godfrey Philips India Ltd. & Oters-1985 (22) E.L.T. 306 (S.C.). The Respondent has also cited the case law of National Leather Cloths Mfg Co. Ltd. Vs. UOI-2010 (256) ELT 321 (SC) & Kesoram Rayon Vs. Commr. of Central Excise, Calcutta-II-2001 (136) E.L.T. 382 (Tri.-Kolkata). Accordingly, he p....
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....le without secondary packing during the material period at the factory gate but these were actually marketed. Thus when goods were marketable during the material period without secondary packing where is then the question of including this cost of secondary packing in working out the assessable value of goods. 19. As stated in paras 15 & 16 above, it is a fact admitted by the Department that the appellant was always providing secondary packing at the behest of the customer. This aspect was never questioned during the material period. It is only now while finalizing the provisional assessments has the lower authority insisted for production of invoices/purchase orders, in each and every case, for him to determine whether secondary packing was procided at the instance of the customers. The finalization of assessments has been made after 7 to 27 years, and with the passage of time it cannot be ruled out that it may not be possible for the appellant to produce each and every invoice or order covering the whole of 20 years. The lower authority did not accept the sample invoices produced by the appellant during the course of adjudication proceedings. The appellant has now in course of....
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.... This will lead to further uncertainties as this percentage will get determined at the end of the year while at the time of clearances of goods from the factory doubt will persist when to include or not the cost of such packing. 21. For the aforesaid reasons, the lower authority erred in including the cost of secondary packing in work out the assessable value of goods during the period 01.04.1980 to 30.06.2000. Thus the order on this count is not sustainable in law and on facts. 22. The other part of the impugned order relates to including, during the period 01.04.1982 to 30.06.2000, the cost of "forwarding charges" in working out the assessable value of goods. It has always been the case of the appellant that these charges are nothing but transportation and other charges for transporting the goods from the factory gate to the railway booking and for storage in godowns, etc. There is even a reference to these in the order of the Assistant Collector dated 29.1.1986. The appellant has all along, right from day one, taken this consistent stand. For this initial period upto 1985 or so, the appellant has even furnished documents which go to show that the amounts of forwarding char....
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....s 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 the packing i....