TMI Blog1995 (10) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... s are individually packed in small boxes. Dozens of these small boxes are packed in medium size cartons and varying number of such cartons are packed in larger corrugated cartons i.e. 7 ply corrugated cartons. This is the condition in which the manufactured products are stored in the bonded warehouse of the assessee situated within the premises of the factory. The factory is at Allahabad. The assessee has two customers in Allahabad who invariably buy these products in the medium size cartons. The other sales by the assessee are to wholesale dealers at various places in the country. The goods are sent to private customers in larger corrugated cartons by charging extra cost for such packing. The dispute relates to three different periods betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-ruled by the Collector who assessed excise duty by assessing the value as inclusive of the cost of outer packing. These decisions relating to successive periods are being challenged in these appeals. 3. One of the questions which arises for consideration is whether the cost of outer packing is liable to be included in the assessable value. The assessee relies on the decision in his own case reported in 1992 (61) E.L.T. 328, which, it is submitted, has been approved in the recent decision in MRF Ltd. case reported in 1995 (77) E.L.T. 433 (SC). Learned counsel for the assessee as well as the Departmental Representative, Shri A.K. Singhal referred to a number of decisions. We think it unnecessary to refer to the earlier decisions since al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng observations :- In Godfrey Philips and Geep, this Court was concerned with a special type of packing which seemed intended more to protect the packed goods against injury or damage rather than to enable it being placed on the market. Indeed, in Godfrey Philips, this was a factual position that had been accepted by the departmental authorities earlier for a period of little over six years which they later wanted to go back upon . The test as laid down in MRF case is as follows :- Whether packing, the cost whereof is sought to be included is the packing in which it is ordinarily sold in the course of a wholesale trade to the wholesale buyer. In other words, whether such packing is necessary for putting the excisable article in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nufactured products are packed in corrugated cartons and not in wooden crates. Presuming that wooden crates were being used to preserve and protect the goods from damage during transportation, the same need not be and cannot be the position with regard to use of corrugated cartons. The question is one entirely of fact. It is for the assessee to place the necessary materials before the statutory authority. 5. The price list is the only material placed before the statutory authorities concerned. Less than 3% of the manufactured products are sold to dealers of Allahabad who take delivery of the goods at the factory gate in small cartons i.e. in numbers less than the total number of medium size cartons packed in corrugated cartons. Necessaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not whether the assessee has actually collected the excise duty or not from the customers. The question is whether excise duty is payable on the goods. If found payable, deduction has to be given from the value. The Collector has failed to do so. He should have done so. 7. The last contention arises only in appeal No. 2796/93. Section 11A of the Act deals with recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. Two periods of limitation are prescribed to cover two different situations. Sub-section (1) requires notice to be served on the assessee within six months from the relevant date. The proviso states that in cases where excise duty has not been levied or paid or has been short-levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ist. The departmental representative contended that bulk of the sales are of goods packed in secondary packing, there has been an attempt to mislead the statutory authority by the manner in which the price lists were prepared, and there was wilful suppression of facts. Assuming that the assessee was trying to be somewhat clever in arranging the mention of prices in the manner in which it has been done, that cannot, in our opinion, be regarded as wilful suppression of material facts. This is particularly so when this was not pointed out when the price lists were submitted and the department was fully aware of the past excise history of the assessee. In these circumstances, we hold that the Collector was in error in invoking the proviso to Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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