{"id":150023,"date":"1986-05-29T00:00:00","date_gmt":"1986-05-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/i-t-c-limited-vs-collector-of-central-excise-on-29-may-1986"},"modified":"2018-12-08T00:30:52","modified_gmt":"2018-12-07T19:00:52","slug":"i-t-c-limited-vs-collector-of-central-excise-on-29-may-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/i-t-c-limited-vs-collector-of-central-excise-on-29-may-1986","title":{"rendered":"I.T.C. Limited vs Collector Of Central Excise on 29 May, 1986"},"content":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi<\/div>\n
I.T.C. Limited vs Collector Of Central Excise on 29 May, 1986<\/div>\n
Equivalent citations: 1986 (9) ECC 224, 1986 (8) ECR 458 Tri Delhi, 1986 (25) ELT 437 Tri Del<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 D.C. Mandal, Member (T)<\/p>\n
1. By this appeal, the appellants have challenged the Order-in-Appeal passed by the Collector of Central Excise (Appeals) confirming the Order-in-original C. No. V\/17\/17\/37\/82 dated 13.4.1983 passed by Assistant Collector of Central Excise, Madras.\n<\/p>\n
2.   The facts of the case in brief, are that the appellants manufacture, inter  alia,  printed cartons,  shells,  bulls and printed cut outs for cigarette packets. They submitted 3 price lists dated 5.9.1982, 5.9.1982 and 6.9.1982 respectively  declaring  the  value of  their products under  Section 4 of  the Central   Excises   and   Salt   Act,   1944   and   claiming   deductions   therefrom on account of “cost of durable and returnable corrugated fibre cardboard containers.”  The Assistant Collector of Central Excise, Madras III Division disallowed the deductions claimed by the appellants. An appeal filed against that  order  was  rejected  by   the  Collector of Central  Excise (Appeals) by the impugned order.\n<\/p>\n
3.   The  appeal  filed before  the Collector (Appeals) was on the same ground  as  before  the   Assistant  Collector.  But  during  the  hearing before the  Collector,   the   appellants   introduced  a  new  ground  that  as per  the judgment of the Supreme Court in the case of Union of India and Ors. v. Bombay Tyre International Limited,<\/a> delivered on 9.5.1983, cost of special secondary packing was excludible from the wholesale price and that the packing provided by the appellants was special secondary packing at the request of the customers. It. was conceded by the appellants before the Assistant Collector and the Collector (Appeals) that the packing materials were not being returned by the buyers and no part of the sale price of the excisable goods falling under Tariff Item 17 was being refunded to the buyers, when such packing materials were returned, in case they were so returned. It was held by the Full Bench of Gujarat High Court in the case of Ahmedabad Manufacturing and Calico Printing Limited and Ors. v. Union of India reported in 1982 E.L.T. 821 (Guj.) that the expression returnable by the buyer to the seller meant returnable as per agreement between the buyer and seller, because when in such cases cost of packing is included in the price by the seller, it was obvious that it was so done in order that the durable packing was returned and the cost was a sort of security for the return of the packing. Since it was conceded by the appellants that the packings were not returnable to the appellants in the sense in which the expression was interpretaed by the Gujarat High Court, the Collector (Appeals) held that the decision of the Assistant Collector in disallowing the deductions claimed by them towards cost of packing from the assessable value was correct in law and was sustainable.\n<\/p>\n
4.   As   regards   the   new   ground   introduced   during   the   hearing   before Collector  (Appeals),   he   has  stated   in   para  4  of  the   impugned  order  that he had requested the appellants to substantiate with facts and documentary evidence that the special secondary packing claimed was provided by them at  the  specific  instance  of  a  wholesale  buyer and  this was not generally provided by  them as a normal feature of wholesale trade. It is also stated that the evidence produced by them under cover of their letter (not dated) did not introduce any evidence to substantiate their claim that the packing done  by  them  was  in  the  nature of special secondary packing as contemplated  in  the  judgment  of  the  Supreme  Court  and that the evidence only showed that some customers preferred wooden packing, some desired catron packing and some requested for corrugated fibre board packing. The Collector (Appeals),  therefore,  has held  that  this  does  not  show that  these  are special   secondary   packing   as   envisaged   in   the  judgment   of   the   Supreme Court.\n<\/p>\n
5.   We   have   heard   Shri   A.N.   Haksar   and   Shri   P.K.   Ram,   Advocates for   the   appellants.   We   have   also   heard   Shri   P.K.   Ajwani,   SDR   for   the respondent.\n<\/p>\n
6.   Shri   Haksar   has   argued   that   there   was  clearance   of  the  cartons in   bundles   at   the   factory   gate   without  C.F.C.  and  wooden  box  packings. These packings are provided  according to the preference of the customers. In   paragraph   18  of  the  judgment  of  Supreme  court  in  the  case  of  Union of   India   &   Others   v.   Godfrey   Phillips   India  Limited  &   Others,<\/a>   reported in   1985   (22)   E.L.T.   306   (S.C.),   it  was  held   that  the  cost  of  corrugated fibre   board   containers   should   not   be   included   in  the  value  of  cigarettes. In paragraph 24 of that judgment it was also observed that such containers used  for  facility  of smooth  transport of cigarettes to customers at a distance   should   not   be   included   in  the   assessable   value   of  cigarettes.  Shri Haksar  had  also  pleaded  that   in  the  said  judgment  it was held  that  the doctrine   of   promissory   estoppel   was   applicable   from  24.5.1976  when  the Central   Board   of   Excise   and   Customs   issued   clarification   that   the   cost of corrugated fibre board containers would not be includible in the assessment value of cigarettes. According to the learned Advocate, the same should be applicable to this case also<\/p>\n
7.   Shri   P.K.  Ram  has  argued  that  according  to  the ratio of judgment of   Bombay   High   Court   in   the   case   of   Godrej   and   Boyce   Manufacturing Company    Private    Limited,   Bombay   and   Another   v.   Union   of   India   and Ors.  reported   in   1984  (18)  E.L.T.   172  (Bom.),  the  cost  of special secondary packing is excludible from the assessable value.\n<\/p>\n
8.   Copies of the 3 price lists which were the subject matter of adjudication   proceedings   were   not   produced   before   us   by   the   appellants.   Shri Ajwani, learned SDR filed copies of the same in the court before us during the  hearing.   Shri   P.K.   Ram,   Advocate   for  the   appellants  confirmed  that those were in price list at issue.\n<\/p>\n
9.    At   the   beginning   of   his   arguments,   Shri   Ajwani   has   drawn   our attention   to   the   fact   that   the   learned   advocate   for   the   appellants   has not   produced   any   evidence   to   prove   that   the   packings  were   durable   and returnable   according   to   the  interpretation   of   this  expression   as  given  by Gujarat High Court in the judgment reported in 1982 E.L.T. 821 (Ahmedabad Manufacturing   and   Calico   Printing  Limited)   although   time   was  taken   for this purpose.\n<\/p>\n
10. Shri   Ajwani   has  then  raised  a  technical  objection  saying  that  the appeal   has   not   been  signed   by   the   Principal   Officer   of   the  Company  as required by Rule 213 of the Central Excise Rules read with CEGAT Procedure  Rules. Power of attorney  holder  is not competent to sign the Memorandum  of   Appeal.   The   appeal   is   liable   to   be   dismissed   on   this   ground itself.\n<\/p>\n
11. The gists of the other arguments of Shri Ajwani are as follows;-\n<\/p>\n
The appellants have not produced any evidence to prove that the printed matters manufactured by them were cleared in loose condition without any Backing. Packing which is essential for clearance of the goods from the factory is includible in the assessable value. The ground of the appellants before the Assistant Collector and in the Memorandum of Appeal before the Collector (Appeals) was that the packings were durable and returnable. Now, their ground is that those were special secondary packings. So far as the durability and returnability are concerned, this case is squarely covered by the following judgments, viz.\n<\/p>\n
(i)   Ahmedabad   Manufacturing   &   Calico   Printing   Limited   and   Others v. Union of India, 1982 E.L.T. 821 (Guj.);<\/p>\n
\n \n\n(ii)  Sathe   Biscuits   and   Chocolate   Co.   Ltd.   and   Another   v.  Union   of India and Ors., 1984 (17) E.L.T. 39 (Bom.); and\n \n\n(iii) Lucky    Biscuit    Company    v.   Collector   of   Central    Excise,    Patna 1984 (18) E.L.T. 96 (Tribunal).\n \n\n<\/pre>\n
In view of these judgments, the appellant’s contention that the cost of corrugated fibre containers and the wooden boxes are excludible from assessable value is not tenable. The plea of special secondary packing also does not help their case since the terms of paragraph 49 of the Supreme Courts’ judgment in the case of Union of India and Ors. v. Bombay Tyre International Limited,<\/a> reported in 1983 E.L.T. 1986 (SC), even the secondary packing is to be included in the assessable value. The judgment of the Supreme Court reported in 1985 (22) E.L.T. 306 (SC) is not applicable to the present appeal as it is not the case of the appellants that wooden boxes and corrugated fibre containers were used for the purpose of facility of transport. Their plea is that these packings were supplied according to the preference of the buyers. Further, the above case related to cigarettes, where there were three packings before the bigger cartons were packed in corrugated fibre containers. The case of Godrej and Boyce Manufacturing Co. Ltd. 1984 (18) ELT 172 relied upon by the learned Advocate Shri P.K. Ram is distinguishable from the present case since in the other case refrigerators used to be cleared in polythene packing and the wooden crates were used for outstations. In the present case, no evidence has been produced to prove that the cartons were cleared in packing other than corrugated fibre containers and wooden boxes.\n<\/p>\n
12. We   have   carefully   considered   the   records   of   the   case   and   the submissions   of   both   sides.   We   are   disinclined   to   dismiss   the   appeal   on the   technical   ground,   albeit  important,   since   we   have   heard   the   appeal on   merits  as well and have come   to  appropriate   conclusions  on  the   merits of the case. We, accordingly, dispose of the appeal on merits.\n<\/p>\n
13. The   appellants  have  not  produced  any  evidence  either before the lower   authorities   or   before   us  to  prove   that  normally   the   manufactured goods used to be cleared by them in bundles or in loose condition without any packing. In paragraph 5 of the Order-in-original, the Assistant Collector has   stated   that   they  have  not  been  able  to  cite   even  a  single   instance where the goods were sold by them without any packing whatsoever. Even now before us, the appellants have not been able to produce any evidence to   substantiate   their   contention.   In   the   absence   of   any   evidence   being produced either before  the  lower authorities or before us, we  are unable to accept this contention of the appellants.\n<\/p>\n
14. The appellants have contended that the corrugated fibre containers and  wooden  boxes  were  durable   and  returnable   packings  and  hence   their cost  should  be  deducted from the  assessable  value of their  manufactured products.  We   find  from   the  Order-in-Original  that there  were  no  records maintained by the appellants for packings which were returned and re-used and  as  such   it   was  not  possible   to  know  whether  an  appreciable portion has   been   returned   or   not.   We   also  find  from  the   Order-in-original  that the appellants submitted only one case where 13 corrugated fibre containers were  returned  by  one  customer,  a  match  factory  of  Sivakasi.  This  single instance   of   only   13   containers   cannot   be   said   to   represent   the   pattern of their  sale.   They  have  not  been  able  to  cite  any  other  instance.   The Assistant Collector has also stated in the Order-in-original that the appellants  submitted  one  purchase  order  of  M\/s. Hindustan Lever  from which it was found by him that the packing material was clearly non-returnable. This goes quite contrary to the appellants’  claim that their packings were returnable.   In   the   case   of   Ahmedabad   Manufacturing   &   Calico   Printing Ltd.   and   Another  v.  Union  of   India,  reported  in   1982  E.L.T.   821   (Guj.), Gujarat   High   Court   interpreted   the   meaning   of   expression   “returnable by  the  buyer  to  the seller” appearing  in Section 4(4)(d)(i) of the  Central Excises and Salt Act,  1944. The Hon’ble High Court held that “Returnable means returnable as per agreement between the buyer and the seller because when  in  such  cases  the  cost  of  packing  is  included  in  the  price by  the seller,  it  is obvious that  it  is so done  in order that the durable packing is returned and the cost is a sort of a security for the return of the packing. A similar interpretation of the expression “durable in nature and is returnable  by the buyer to the assessee” has been made by Bombay High Court in the case of Sathe Biscuit and Chocolate Company Limited and Anr. v. Union of India and Ors., reported in 1984 (17) E.L.T. 39 (Bom.). The Hon’ble   High   Court,   in   paragraph   10   of   the   judgement,   inter  alia,  held that…   in   the   context   in   which   the   word   ‘returnable   is  used  and   is preceded by the word ‘is it positively indicates that there has to be a term of the contract which makes it obligatory on the manufacturer to accept the container or the packing when the same is returned if it is of a durable nature. By excepting the cost of packing which is of a durable nature and is returnable by the buyer, the Legislature was clearly giving effect to the principle that no excise duty would be leviable on a packing which was capable of being re-used because this would mean that the value Of the same packing would be subject to excise duty more than once. We are, therefore, of the view that the cost of only such packing which is of a durable nature and is returnable under the terms of the contract between the manufacturer and the wholesaler is excludible from the value for the purposes of excise duty. The above judgments were followed by this Tribunal earlier in the cases of (i) Lucky Biscuit Co. v. Collector of  Central Excise, Patna (1984-18-ELT-96) and (ii) M\/s. Indian Vegetable Products Limited, Bombay v. Collector of Central Excise, Bombay (Appeal No. ED\/SB\/T\/A. No. 17\/78-A), in holding that in the absence of any evidence that by an agreement between the assessee and their buyers the containers were returnable or were actually returned to the assessee, the cost of such packing was includible in the assessable value under Section 4(4)(d)(i) of the Central Excise Act. In the present case, the appellants have not been able to produce any evidence to show that the corrugated fibre containers and the wooden boxes were returnable by the buyers to the appellants as per terms of agreements and, in fact, were so returned by the buyers to them. They did not also produce any records of the returned packings, if any. In the absence of any evidence produced either before the lower authorities or before us, we cannot accept the contention that these packings were durable in nature and were returnable within the meaning of Section 4(4)(d)(i) of the Central Excises and Salt Act, as interpreted by Gujarat and Bombay High Courts (supra).\n<\/p>\n
15. The learned advocate has relied upon paragraphs 18 & 24 of the judgment of the Supreme Court in the case of Union of India and Ors. v. Godfrey Phillips India Limited and Ors.,<\/a> reported in 1985 (22) E.L.T. 306 (S.C.), in support of his argument that the cost of corrugated fibre board containers should not be included in the assessable value of the paper cartons manufactured by them. In the case of Godfrey Phillips Ltd., the manufactured goods were  cigarettes. Cigarettes were first packed in small packets of 10 or 20 cigarettes. Those small packets were then packed in bigger cartons. Cigarettes were normally cleared in those cartons to the wholesale dealers at the factory gate. It was held by the Hon’ble Supreme Court that the cost of these bigger cartons were includible in the assessable value. But when a number of these cartons are put in corrugated fibre board container for delivery or for the facility of smooth transport, the cost of further packing incurred in putting the cartons in the, C.F.C. cannot be included in the value of cigarettes for the purpose of Central Excise duty. The general proposition laid down by the Hon’ble Supreme Court in the judgment delivered in Bombay Tyres Internationals’ case (1983 ELT 1896) is that “the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the ‘value’ of the article for the purpose of excise duty.” In the case of. Sathe Biscuits and Chocolate Company Ltd. 1984 (17) E.L.T. 39 (Born.) Bombay High Court held that cost of secondary packing consisting of the tin containers and corrugated fibre containers was includible in the assessable value of biscuits. Therefore, the excludibility of secondary packing depends on the nature of packing which is normally used for delivery of the manufactured goods to the wholesale dealers in the factory gate. In the present case, the appellants have not produced any evidence to show what packing they normally used in delivering the goods to the wholesale dealers at the factory gate in the course of wholesale trade nor have they produced any evidence to prove that wooden boxes and corrugated fibre board containers were not normally used as packing for putting the paper cartons for sale “in the wholesale market at the factory gate. In the absence of any such evidence, we are unable to accept their plea that the cost, of these packings is not includible in the assessable value of the paper cartons manufactured by them.\n<\/p>\n
16. The   doctrine   of   promissory   estoppel   consequent   on   the   issue   of the   clarificatory   letter  of  the  Central  Board  of  Excise  &  Customs dated 24.5.1976 is not applicable  in this case of the appellants because the said letter was issued in the context of use of corrugated fibre board containers as   secondary   packing   of   cigarettes.  Cigarettes  were   first   put   into  small packets  of   10  or  20.  Those  small  packets  were  packed  in bigger cartons. This  is  the  packing  in which cigarettes were generally  sold to the wholesale dealers in the factory gate. When such cartons were placed in corrugated   fibre   containers,   the   cost   of   the   C.F.C.   was   not   to   be   included in  the   assessable   value.   The   appellants  before  us  have  not  produced  any evidence to show that such is the condition in their case also.\n<\/p>\n
17. Shri  P.K.  Ram,   Advocate for the  appellants have relied  upon  one decision of Bombay High Court reported in 1984 (18) ELT 172. Shri Ajwani has distinguished that case from the present one. We agree with the reasoning  given  by  him.  In  view  of  the  distinction  between the  two cases, we cannot accept Shri Ram’s argument.\n<\/p>\n
18. In   ground   No.   (ix)   of   the   Appeal   Memorandum,   the   appellants have   raised   the   plea   of   double   taxation   if   excise   duty   was  again   levied on   the   C.F.Cs.   and   wooden   boxes   which   were   purchased   by   them   from the   market.   This   plea   is   misconceived   and   contrary   to   the   provision  of Section  4 of the  Central Excises and Salt Act.  This Section provides that the cost  of packing should be included in the assessable value of excisable goods.\n<\/p>\n
19. In   view   of   the   foregoing   discussions,  we   find   that   the   orders   of the  lower  authorities are sustainable  in law and do not merit interference by  this  Tribunal.  We,  therefore,  see  no  justification to  interfere with the impugned order. In the result, we dismiss this appeal.<\/p>\n","protected":false},"excerpt":{"rendered":"
Customs, Excise and Gold Tribunal – Delhi I.T.C. Limited vs Collector Of Central Excise on 29 May, 1986 Equivalent citations: 1986 (9) ECC 224, 1986 (8) ECR 458 Tri Delhi, 1986 (25) ELT 437 Tri Del ORDER D.C. Mandal, Member (T) 1. By this appeal, the appellants have challenged the Order-in-Appeal passed by the Collector […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[41,33],"tags":[],"class_list":["post-150023","post","type-post","status-publish","format-standard","hentry","category-customs-excise-and-gold-tribunal-delhi","category-tribunal"],"yoast_head":"\nI.T.C. 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