TMI Blog2017 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... ctured by the respondents. Clearly, these cartons do not render the excisable goods to be marketable and are meant only for transportation - the PET containers are marketable without being put in the corrugated cartons and the ratio of judgement in the case of CCE, Indore Vs. Grasim Industries Ltd. [2014 (4) TMI 650 - CESTAT NEW DELHI] is applicable in the present case where it was held that he cost of only that packing would be includible in the assessable value which is necessary to make the goods marketable and this principle would be applicable while interpreting the provision of Section 4. If some goods are marketable without being put into the containers, the cost of containers including their testing charged would not be includible i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but set aside the penalty. Revenue has filed this appeal against the dropping of the penalty by Commissioner (Appeals) and the respondents have filed Cross Objections pleading for setting aside the demand along with interest and to reject the Revenue's appeal. 3. Ld. AR appearing on behalf of the Revenue submits that the period in this case is January 2006 to September 2006 and once demand for extended period is confirmed, elements of extended period and Section 11AC being same, the penalty cannot be waived. He also stated that in the case of Rai Agro Industries Ltd. Vs. CCE, Ludhiana - 2011 (263) ELT 550 (Tri. Del) , which followed the decision of Maruti Suzuki India Ltd. Vs. Commr. - 2010 (257) ELT 226 (Tri. LB) relied upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he packing material viz. corrugated cartons from their buyer on free of cost basis for use in packing of PET bottles/jars manufactured by them. The jars and containers are meant only for carrying the excisable goods manufactured by the respondents. Clearly, these cartons do not render the excisable goods to be marketable and are meant only for transportation. We find that issue of inclusion of cost of packing material was examined by this Tribunal in the case of CCE, Indore Vs. Grasim Industries Ltd. (supra) , wherein the Tribunal has held as under: 5. During the period w.e.f. 1-7-2000, under Section 4(1)(a), the assessable value of the goods, on each removal, shall, in a case where the goods are sold by the assessee, for delive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and testing of those containers is mandated by law, the testing charges of those containers would be includible in the value along with the cost of such containers - if the containers are of durable and returnable nature, the amortized cost of the container including testing charges during the period of use would be includible in the assessable value. Apex Court in the case of M/s. Hindustan Polymers V. Collector of Central Excise, reported in 1989 (43) E.L.T. 165 (S.C) while interpreting the provisions of Section 4(4)(d) of the Section 4 of Central Excise Act, 1944, as it stood during period prior to 1-7-2000, has, relying upon its judgments in cases of Bombay Tyre International, reported in 1983 (14) E.L.T. 1896 (S.C.), UOI v. Godfrey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordingly the cost of only that packing would be includible in the assessable value which is necessary to make the goods marketable and this principle would be applicable while interpreting the provision of Section 4, as it stands w.e.f. 1-7-2000, as the nature of the levy of Central Excise duty has not changed. Therefore, if some goods are marketable without being put into the containers, the cost of containers including their testing charged would not be includible in the assessable value. 6.2 In the present case, we find that the PET containers are marketable without being put in the corrugated cartons and hence we hold that the ratio of above judgment is applicable in the present case. 7. Following the above judgment of this T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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