TMI Blog1985 (1) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ld factory. 2. 'Glass and Glassware' manufactured by the petitioner are dutiable to excise duty under the Central Excise and Salt Act, 1944 (Central Act No. 1 of 1944) ('the Act'). In conformity with the Act and the Rules made under the Act, the petitioner filed four price-lists before the Superintendent of Central Excise, Bangalore, for the period commencing from 1-10-1975 (Exhibit-A1), inter alia, claiming that 'cartons' or 'packing materials' supplied by its buyers and their cost thereto was not includible in the assessable value of excisable goods manufactured and supplied to its wholesale purchasers. On an examination of the said price-lists, the Superintendent provisionally accepted the same and allowed the clearance of goods withou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is view, the challenge to Section 4(4)(d)(i) of the Act is liable to be rejected. 7. On its case for excluding the 'packing material' supplied by the buyers, the petitioner in para 2 of its petition has stated thus : "The products manufactured by the petitioners are purchased by different industries such as those mentioned above for their use. They are also purchased by independent wholesale merchants dealing in glass and glassware. It is not necessary to pack the glassware for the purpose of sale as they can be sold 'naked'. In fact, to some customers like United Breweries Ltd., Kisan Products Ltd., Hindustan Milk Food Manufacturing Co. Ltd. (manufacturers of Horlicks) and a few others, these articles are sold by petitioners at the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or. 9. Shri S.G. Sundaraswamy, learned Counsel for petitioner, strenuously contends that packing material supplied by buyers is not includible in the assessable value of 'glass and glassware' manufactured and supplied by his client to the wholesale buyers under the Act and therefore, the impugned notice is manifestly illegal. In support of his contention, Shri Sundaraswamy strongly relies on a Division Bench ruling of the Gujarat High Court in one of the cases of the very petitioner, reported as Alembic Glass Industries, Baroda v. Union of India - 1979 E.L.T. (J 444) = 1980 (2) Taxation Law Reports, 2251 and a Full Bench ruling of Government of India in the matter of Gujarat Fertilisers Co., Ltd. (1982 E.L.T. 472). 10. Shri K. Shivasha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The Assistant Collector and probably the first appellate authority under the Act are bound by the circular issued by the Collector. This is one other factor that justifies our examination of the question and deciding the same one way or the other. We are of the view that the principles enunciated in British India Corporation's case that deals with a case for enforcement of fund mental rights do not militate against the view we have expressed. We are of the view that all the facts and circumstances justify the final determination of the questions raised in the case. We, therefore, reject the preliminary objection urged by Shri Bhat and proceed to examine the merits. 12. On the very terms of the show cause notice and the pleadings, we ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does not make any difference to hold whether the same does or does not fall within the meaning of the term 'value' occurring in Section 4(4)(d)(i) of the Act at all. When the same does not fall within the meaning of the term 'value', it follows that 'packing material' supplied by the buyers cannot be included in the assessable value of 'glass and glassware' manufactured by the petitioner and sold to the wholesale purchasers. Every one of the observations of the Supreme Court in Bombay Tyre International Ltd.'s case, on which reliance was placed by Shri Bhat, does not militate against our above construction or support his contention and the conclusion reached by the Collector and the Assistant Collector. We have therefore no hesitation in u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion, the packing material which the buyer supplies is so independent of the manufacturing process of the excisable goods and so divorced from it that it is not even within a reasonable distance from the manufacturing process applied to the excisable goods." We are in respectful agreement with these views. 17. In Gujarat Fertilisers Co., Ltd.'s case, a Full Bench of Government, examining a similar question arising under the Act as amended by Act No. 22 of 1973, has taken a similar view. We are of the view that this view expressed by Government in Gujarat Fertilisers Co. Ltd.'s case correctly represents the legal position. 18. On the above discussion, it follows that the impugned show cause notice is liable to be quashed. With this, it ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
