1996 (1) TMI 212 - AT - Central Excise

Issues Involved:
1. Inclusion of the cost of secondary packing in the assessable value of Paints and Varnishes.
2. Interpretation and application of Section 4 of the Central Excises and Salt Act, 1944.

Detailed Analysis:

1. Inclusion of the Cost of Secondary Packing in the Assessable Value of Paints and Varnishes:

The central issue in both appeals was whether the cost of secondary packing (corrugated boxes) should be included in the assessable value of paints and varnishes packed and sealed in tins. The appellants, manufacturers of paints and varnishes, filed price lists deducting the value of secondary packing from the assessable value. The Department contested this deduction, arguing that the secondary packing was essential for making the goods marketable and hence should be included in the assessable value.

The appellants contended that the primary packing (metal containers) was sufficient for marketability and that secondary packing was only for transportation protection. They cited several cases, including *Collector of Central Excise v. Pond's India Ltd.*, to support their argument that secondary packing should not be included in the assessable value.

Conversely, the Department, represented by the SDR, argued that secondary packing was necessary for the goods to be marketable in the wholesale market at the factory gate. They cited cases like *Collector of Central Excise v. Detergents India Ltd.* to support their stance.

2. Interpretation and Application of Section 4 of the Central Excises and Salt Act, 1944:

The Collector (Appeals) upheld the Department's view, stating that the cost of packing necessary for making the goods marketable at the factory gate should be included in the assessable value, as per Section 4(4) of the Central Excises and Salt Act, 1944. The Collector (Appeals) relied on the precedent set in the case of M/s. Marigold Paints P. Ltd., where similar issues were adjudicated.

The appellants argued that the Collector (Appeals) did not consider whether the facts of the Marigold Paints case were identical to their case. They maintained that secondary packing was not essential for marketability but was used for transportation protection.

Separate Judgments Delivered:

Judgment by Member (J):
The Member (Judicial) held that the Collector (Appeals) did not address whether the secondary packing was essential for marketability. Therefore, he remanded the cases back to the Collector (Appeals) to determine if the secondary packing was necessary for making the goods marketable in the wholesale market at the factory gate.

Judgment by Vice President:
The Vice President disagreed, stating that the goods were sold to M/s. Berger Paints in corrugated boxes, and the price of these boxes should be included in the assessable value. He emphasized that Section 4 should be read as a whole, and the price including the corrugated boxes must be considered as the assessable value for this class of buyers.

Final Order by Member (T):
The third Member (Technical) agreed with the Member (Judicial) that the matter should be remanded to determine whether the secondary packing was essential for marketability. He stated that Section 4 should be read as a whole, and the factual position regarding the necessity of secondary packing must be verified.

Conclusion:
The final order, based on the majority opinion, remanded the case to the Collector (Appeals) to determine whether the secondary packing was essential for marketability and whether such packing was used for sales at the factory gate. The appellants were to be given an opportunity to be heard before the matter was decided.

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