TMI Blog2006 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... the local sales at the factory gate are in ordinary polythene packing which were to the extent of 38.45% in 1997-98, 39.83% in 1998-99, 24.67% in 1999-2000 and 16.04% upto June, 2000. The balance sale was to outstation buyers and was in wooden packing. They were issued a show cause notice stating that since the majority of the goods are sold in wooden packing it has to be considered that the goods are ordinarily marketable in wooden packages and therefore the cost of the wooden packing is also required to be included in the assessable value. The show cause notice also relied upon on the statement of the partners in which it was stated that diesel oil engine are generally marketable in wooden packing as they are likely to suffer damages on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and not in wooden cartons and in view of the same the cost of the secondary packing is not includible in the assessable value. He places his reliance on the following decisions: (i) Subrabha Engineering Industries Ltd. 2000 (40) RLT 1062 (CEGAT) =2000 (122) ELT 535 (T) (ii) Akay Cosmetics Pvt. Ltd. 2000 (126) ELT 763 (T) (iii) Antifriction Bearings Corporation Ltd. 1996 (14) RLT 498 (CEGAT)=1999 (112) ELT 0561 (T) (iv) Gurind India P. Ltd. 1999 (112) ELT 1020 (T) (v) Hindustan Safety Glass Works, 1999 (112) ELT 1054 (T) (vi) Shree Gobindeo Glass Works Ltd. 1999 (114) ELT 308 (T) (vii) Racold Appliances 1994 (69) ELT 312 (T) (viii) Laxmi Udyog 1987 (31) ELT 529 (T) (ix) Kesoram Rayon, 2001 (43) RLT 33 (T) 6. As regards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diesel engine are marketable only in the wooden packing and sale in polythene packing were at buyers request. He referred the decision of the tribunal in the case of Stallion Shox Ltd.1996 (85) E.L.T. 139 (Tribunal) in support of his contention. 9. We have considered the submission. We find that the issue regarding the inclusion of the secondary packing in the assessable value as has been considered by the Hon'ble Supreme Court in various cases and these decisions have been summed up in the case of Government of India Vs. Madras Rubber Factory' Ltd. 1995 (77) E.L.T. 433 (S.C) wherein the Supreme Court has observed as under: "The test is whether packing the cost whereof is sought to be included is the packing in which it is ordinarily ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fact is that the I.C. Engine are marketable without wooden packing and hence the finding recorded in the statement that I.C. engine cannot be marketable without wooden packing may be treated as withdrawn. 11. The statement of the partners is therefore not relevant as they could not appreciate the meaning of the term ordinarily marketable. The decision cited by the Learned J.D.R. refers to a case where the entire sale was at the factory gate and it was on their account, a view was taken that since the majority sales were in wooden cartons it has to be inferred that the goods are ordinarily sold in the wholesale market in wooden packing. In the present case it has been stated that the wooden cartons are used only for outstation buyers and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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