TMI Blog1990 (2) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... Cause Notice, dated 28-8-1980 purported to review the order of the Appellate Collector on the ground that the question of inclusion of the cost of the containers have been held by different High Courts differently. In the case of M/s. Auro Food Products v. Union of India reported in 1978 (2) E.L.T.. J. 672, it has been held that the cost of the containers has to be included. Since the issue of inclusion of packing charges was pending decision before the Supreme Court, it would not be correct to hold that the Bombay High Court judgment in the case of M/s. Mansingha Industries should be applicable to all cases. 3. The noticees have filed their reply dated 22-9-1980 to the above Show Cause Notice. 4. The preliminary objection raised by the respondents on the time bar of the review Show Cause Notice, was dismissed by the Tribunal order, Misc. Order No. 43/89-A. 5. The learned SDR, Sh. S. Krishnamoorthy presented the department s case, where he drew attention to the settled law in the Bombay Tyre International case reported in 1983 (14) E.L.T.. 1896 S.C. He, therefore, pleaded that the cost of the primary packing of the tin containers has to be included in the assessable value. Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in paras 51,52,53 and 54 and submitted written submissions in support of his case and maintained that the Show Cause Notice dated 28-8-1980 should be confirmed. The submissions made have been considered. 10. Taking up the case relied upon in Union of India v. Mansingha Industries Pvt. Ltd., the Bombay High Court has held the view that any levy of Central Excise Duty on the value of the tin containers and the cost of freight is wholly outside the law. 11. In the case of M/s. Auro Food Products it has been enunciated that the removal of biscuits must be for the purpose of delivery. The excisable article here viz. biscuits are not delivered at the factory gate without tin containers. Therefore, their value will have to be necessarily included. 12. The Show Cause Notice dated 28-8-1980 states that the question of inclusion of the cost of the tin containers in the assessable value is a subject of varying views by different High Courts and specifically the Madras High Court in the case of Auro Food Products Ltd. has held the view that it is the value at the wholesale price when the excisable article is delivered at the factory gate, which should provide the quantum for levy and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as a part of the product and manufacture of the vegetable product is not complete until it is packed in a tin container. We find no warrant for such a construction. Para 51 :- Now, in the case before us we have held that imposition of Central Excise duty on the tin container and on freight was not warranted by any of the provisions of the Act, 1944. Thus any levy of Central Excise duty on the value of the tin container and the cost of freight was wholly outside the law and it could not be said to be a mere question of an error in the exercise of jurisdiction. The Central Excises and Salt Act of 1944 only provides for the duty of excise on excisable goods so that when an attempt is made to levy duty of excise on goods which are not excisable then such a levy falls outside the law and, therefore, would be illegal. 14. This decision of the Bombay High Court must have a binding effect over similar valuation aspects over assessees in the jurisdiction of the State in which the Bombay High Court has jurisdiction, in preference to a decision of a High Court which is with reference to a later interpretation of the amended Section of the Act on valuation. The other High Court de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to make submissions with reference to the cases mentioned and to show which case could be more appropriately relied upon. But it was not open to them to plead that the notice becomes invalid merely because it cites a particular case or reference to others. 22. Since the fact that Sec. 4, as it stood at the relevant time, was applicable is not in dispute, the only thing which was required to be determined was the correct interpretation thereof. 23. In this respect, while it is correct that the Collector (Appeals) had taken a view based on Bombay High Court s judgment in Mansingha s case, it is equally a fact that Hon ble Supreme Court has since clarified its own judgment in M/s. Voltas case and having explained the true scope ; given a clear verdict in the case of Bombay Tyre International which is holding the field. In my opinion, the Ld. DR was correct in pleading that a Supreme Court judgment was required to be applied to all pending cases. Therefore, this case was required to be viewed in the light of intetptetation of Sec. 4 as given by the Hon ble Supreme Court in the case of Bombay Tyre International. (1983 (14) E.L.T. 1896 (S.C.) 24. The Ld. Counsel has been good ..... X X X X Extracts X X X X X X X X Extracts X X X X
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