ORDER
U.L. Bhat, J. (President)
1. Appellant is absent in spite of notice of hearing, but has sent a request for decision of the appeal on merits. We have heard Shri M. Ali, JDR and perused the papers.
2. Appellant, engaged in the manufacture of starch and sulphuric acid was paying appropriate duty on approved prices. It was subsequently found that during the period from 1984-85 to 1988-89, the appellant had suppressed a part of consideration received for these goods in the shape of cost of calendars and gift articles supplied to wholesale dealers and cost of carboys and bungs used for packing sulphuric acid. Show cause notice was accordingly issued proposing demand of differential duty on these elements of additional consideration. Appellant resisted the notice on merits as well as on the ground of limitation. However, the Additional Collector overruled these contentions and confirmed the demands. Hence this appeal.
3. Appellant was recovering from wholesale dealers amounts equal to the approved price, the cost of calendars and gift articles supplied to wholesalers as also the cost of carboys with bungs. Recovery of the price of calendars and gift articles and the price of carboys with bungs was not disclosed in the price lists or other excise records. These facts were discovered only during the course of investigation following preventive check and verification of records, after debit notes in respect of these amounts were traced out. The show cause notice specifically alleged fraud, wilful mis-declaration and mis-statement and suppression of facts. On the basis of the facts referred to above, these allegations appear to be true. That being so, larger period of limitation under the proviso to Section 11A(1) of the Central Excise Act, 1944 was available and was rightly invoked. It is seen that a part of the period covered by the show cause notice was more than five years prior to the date of show cause notice and that part of the demand would be barred by time.
4. In regard to the amount recovered as cost of calendars and gift articles, Shri M. Ali, JDR placed reliance on Final Order No. 1060 & 1061 /95-A, dated 12-12-1995 in [Appeal Nos.] E/2270/90-A and 3003/92-A to contend for the proposition that the cost of gift articles supplied to the wholesalers is not deductible from the assessable value. Our attention is also invited to three other decisions, one of the Bombay High Court and two of the Tribunal. The decision of the Bombay High Court was in Queens Chemists Mfg. Department -1979 (4) E.L.T. (J454). The High Court held that gifts of articles other than the manufactured articles given purely at the discretion of the manufacturer and not at the choice of the wholesalers cannot be treated as trade discount. To the same effect is the decision of the Tribunal in Glaxo (I) Ltd. – 1995 (76) E.L.T. 451 (Tribunal). In Raymond Woollen Mills – 1997 (20) RLT 251 (Tribunal), the Tribunal held that the dealers incurred expense of Rs. 99,864.67 as cost of gift articles or advertisement expenses, and Rs. 48,050.60 was reimbursed by the manufacturer to the dealers and the difference between the two amounts cannot be added to the assessable value since the parctice amounted to sharing the cost of advertisement by the manufacturer and the dealer, both of whom were benefited by such advertisement. The point decided in Final Order No. 1060 & 1061 /95-A was also the same. The Tribunal held that 50% of the cost of gift articles recovered by the manufacturer from the dealers by separate debit notes cannot be added to the assessable value since the advertisement and publicity benefited both the manufacturer and the dealer. This principle has been upheld by the Supreme Court in the case of Philips India Ltd. -1997 (91) E.L.T. 540 (S.C.).
5. The reply to the show cause notice clearly indicated that the cost of gift articles was adjusted in the price fixed by the manufacturer. That being so, the same cannot be regarded as extra consideration received by the manufacturer from the dealers on account of advertisement expenses. This would mean that the estimated amount recovered had been included in the price. In this view, the amount cannot be separately added to the assessable value. Therefore, demand on account of cost of gift articles fails.
6. Appellant, who was packing the sulphuric acid in carboys with bungs, contended that the packing material being durable and returnable, the cost thereof cannot be included in the assessable value. The impugned order itself indicates that cost of packing material was not being collected as part of invoice price and that the cost had been recovered by separate debit notes only when dealers did not return the packing material. This would indicate that the manufacturer and buyers proceeded on the basis that packing material was durable and returnable and initially the manufacturer was not collecting the cost thereof and only when it was found that packing material was not actually returned, the cost was being collected. There can be no doubt that packing material in the instant case falls in the category of “durable in nature and returnable by agreement” and the cost thereof cannot be included in the assessable value.
7. For the reasons indicated above, the impugned order is set aside and the appeal is allowed.