TMI Blog1988 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... hich Is the determining factor because, In that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superfluous. In the facts found and the expressions used in Section 4(4)(d)(i) of the Act which have been set out hereinbefore, there being no evidence of the agreement that the cartons and gunny bags were returnable, we are of the opinion that the Tribunal came to the correct conclusion. This appeal fails and is rejected accordingly. - Civil Appeal No. 1037 of 1988, - - - Dated:- 26-7-1988 - Sabyasachi Mukharji and S. Ranganathan JJ. S.N. Kackar, Senior Advocate (R.K. Habbu, P.G. Gokhale, Ms. Sushma Manchanda and B.R. Agarwal, Advocates, with him), for the appellant. [Judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gunny bags that the appellant deilvered the glass bottles packed in cartons which are also durable and returnable. Towards the end of 1977 and early 1978 the appellant emitted price list in regard to the glass bottles manufactured by it for approval by showing' separately the price at which such goods were actually sold in the course of "wholesale trade" and "the cost of packing". By his letter, dated 10th January, 1978, the Superintendent of Central Excise returned to the appellant the price lists duly approved but nothing therein that the price should be inclusive of the cost of packing and packing charges in terms of Section 4(4) (d) of the Act. Section 4(4)(d)(i) as it stood read as follows: "(4) For the purposes of this section:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considering the written statements filed by the appellant, the Assistant Collector passed an order on 29th April, 1986 rejecting the appellant's refund claim for about Rs. 17 lakhs for the period from 1st January, 1978 to 31st December, 1980 and demanding duty for the period 6th January, 1981 to 31st December, 1985 in terms of the bank guarantees executed by the appellant. There was an appeal before the Collector of Central Excise (Appeals). The Collector on 21st January, 1987 rejected the appeal and upheld the order of the Assistant Collector. The appellant filed an appeal before the Customs Excise and Gold (Control) Appellate Tribunal (hereinafter called 'CEGAT'). CEGAT dismissed the appeal. Aggrieved thereby the appellant filed the appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tablished. Actual return or extent of return is not relevant. What is necessary is that if the buyer chooses to return the packing, the seller should be obliged to accept it and refund the stipulated amount in this case after examining the facts, the Tribunal found that there was no clause about returnability of the cartons and gunny bags. The appellant invited the attention of the Tribunal to the following clause in their standard contract. It read as follows: "6. All packing cases, other than such as may be supplied or paid for by buyer, shall be returnable in good order and condition within 30 days after receipt." The Tribunal was of the view that the above clause related to "cases". It could have meant only the crates which belonged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnotation of the word "returnable". Does it mean physically capable of being returned or does it postulate an arrangement under which the packing Is returnable. White interpreting this word, we must clear in mind that what section 4(4)(d)(i) excludes from computation is cost of packing which is of a durable nature and is "returnable by the buyer to the assessee". The packing must be one which is returnable by the buyer to the assessee and obviously that must be under an arrangement between the buyer and the assessee. It is not the physical capability of the packing to be returned which Is the determining factor because, In that event, the words "by the buyer to the assessee" need not have found a place in the section; they would be superflu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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