TMI Blog2016 (10) TMI 1174X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of inclusion of cost of packing material was examined by this Tribunal in the case of CCE, Indore v. Grasim Industries Ltd. [2014 (4) TMI 650 - CESTAT NEW DELHI], where it was held that 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 - In the present case, the PET containers are marketable without being put in the corrugated cartons and hence the ratio of above judgment is applicable in the present case. Appeal dismissed - decided against Revenue. - E/54532/2014-EX(DB) and Cross Objection No. E/CROSS/50563/2015 - Final Order No. A/60543/2017-EX(DB) - Dated:- 20-10-2016 - Shri Ashok Jindal, Member (J) and Devend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. v. CCE, Ludhiana - 2011 (263) E.L.T. 550 (Tri.-Del.) which followed the decision of Maruti Suzuki India Ltd. v. Commr. - 2010 (257) E.L.T. 226 (Tri.-LB.) relied upon by Commissioner (Appeals), the penalty was waived only for the period prior to 1 July 2000. Hence the Commissioner (Appeals) should not have dropped the penalty as the period is after 1 July 2000. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 v. 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 delivery at the time and place of removal to unrelated buyers and price is the sole consideration for sale, is the Transaction value. The term transaction value is defined in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Philip India, reported in 1985 (22) E.L.T. 306 (S.C.) and CCE, v. Indian Oxygen Ltd., reported in 1988 (36) E.L.T. 730 (S.C.) held that : (a) Cost of packing is not includible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preting 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 Tribunal, the order of Commissioner (Appeals) does not survive. Accordingly, we allow the cross-objections with consequential relief, if any. 8. The appeal filed by the Revenue is dism ..... X X X X Extracts X X X X X X X X Extracts X X X X
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