TMI Blog1980 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Glasswares) manufactured in their factory without declaring the correct assessable values of different items in their price lists effective during the period from 1-9-1972 to 31-5-1973 and charged extra amount as additional transportation, special packing, 'loading and unloading charges' in respect of each and every individual item of sale to their different customers (including wholesale dealers) in their separate set of sale bills and whereas it appears that proper Central Excise Duties were not paid under Rule 173 C of Central Excise, Rules, 1944 on those clearance due to which the following duties have been short-levied and whereas the said amount is recoverable from the said M/s. Shiva Glass Works Co. Ltd., under rule 10 read with R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 1-9-1972 to 31-5-1973. This type of additional charges were found to have been charged at a fixed rate per gross or per dozen or per hundred pieces for a particular variety by the said M/s. Shiva Glass Works Co. Ltd., in a separate set of bills marked T/1, T/2 etc., for each and every individual items of glass bottles and phials cleared during the period under review in addition to the realisation of declared prices inclusive of Central Excise duties as per their Price List in the said bills. On scrutiny of records it was observed that the said M/s. Shiva Glass Works Co. Ltd., started selling of certain items in cash memos at the factory rate since 23-9-1972. The varieties sold in those cash memos during the period found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences upon which the said M/s. Shiva Glass Works Co. Ltd., intend to rely in support of their defence. 6. M/s. Shiva Glass Works Co. Ltd., should also indicate in the written explanation whether they wish to be heard in person before the case is adjudicated. 7. If no cause is shown against the action proposed to be taken within 10 days of the receipt of this notice for the said M/s. Shiva Glass Works Co. Ltd., do not appear before the Asstt. Collector of Central Excise, Cal. X Div. when the case is posted for hearing the case will be decided in accordance with the provisions of Rule 10 (2) of the C.E. Rules, 1944 without further reference to them if the said M/s. Shiva Glass Works Co. Ltd., desire extension of time for showing cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng and unloading charges in respect of each and every individual item of sale to their different customers cannot be based upon which the excise duty can be levied. It must be stated that we are concerned only with the period between 1-6-1972 to 31-5-1973 when section 4 of the Central Excises Salt Act, 1944 was not amended. Section 4 of the Act is a provision for determination of value for the purpose of duty where it has been provided that any article is chargeable with duty at a rate dependent on the value of the article, such value be deemed to be the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption notification the duty leviable is also to be taken into consideration because unless the duty is leviable, the exemption cannot be granted. It was further held that the value for the purpose of exemption notification is the real value after the duty has been paid and calculated and not the deemed value of section 4 of the Central Excises Act. In the said case the Division Bench of High Court differed with the Division Bench of the Patna High Court in a case being Civil Revision Jurisdiction Case No. 1330 of 1970. It has been held by the Division Bench that the value for the purpose of exemption notification is the real value after the duty has been paid and calculated and not the deemed value of section 4 of the Act. In the expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mysore High Court and of the Gujarat High Court which holds the same view in a case reported in 1979 (4) E.L.T. (J 444) holding inter alia that the cost of packing certainly enjoys the character of post-manufacturing expenses as it has nothing to do with the manufacturing process and manufacturing activity is over or completed. Moreover, it cannot be said that the manufacture of excisable goods is complete only when it is packed. The cost of packing and packing materials do not form the part of the value as defined in section 4(4) (d) because the impost on packing material under the aforesaid circumstances cannot be levied or collected. In an another decision reported in 1979 (4) E.L.T. (J 158) in the case of Union of India v. Mansingka In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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