TMI Blog1986 (5) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... dras-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. 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 Others v. Bombay Tyre International Limited, delivered on 9-5-1985, 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 Others v. Unio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners 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. 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 Others reported in 1984 (18) E.L.T. 172 (Bom.), the cost of special secondary packing is excludible from the assessable value. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is to be included in the assessable value. The judgment of the Supreme Court reported in 1985 (22) E.L.T. 306 (S.C.) 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) E.L.T. 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. 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 appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded 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 Another v. Union of India and Others, 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very 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 Tyes Internationals case (1983 E.L.T. 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 (Bom.). 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 u ..... 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