TMI Blog1996 (10) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of the Bombay High Court is set aside subject to the direction that insofar as the inclusion of the value of the plastic caps in the value of the extruded tubes is concerned, the matter shall be gone into and determined by the authorities under the Act in accordance with law. - 100 of 1981 - - - Dated:- 1-10-1996 - B.P. Jeevan Reddy and Suhas C. Sen, JJ. [Judgment per : B.P. Jeevan Reddy, J.]. - Leave granted in the Civil Appeal No. 12657 of 1996 [arising from Special Leave Petition (C) No. 1836 of 1982]. 2.Common questions of law arise in this batch of appeals. For the sake of convenience, we may deal with the facts in Civil Appeal No. 100 of 1981 (Union of India v. Metal Box Company of India Ltd.). The matter arises under the Central Excises and Salt Act, 1944. 3.The respondent, Metal Box Company of India Limited, were manufacturing tubes, popularly known as "aluminium collapsible and rigid tubes". The collapsible tube is a cylinder of pliable metal. These tubes were originally manufactured from lead but later they were being manufactured predominantly from aluminium. The respondent was manufacturing the said tubes from aluminium by extrusion, i.e., by for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of plastic caps. The learned Single Judge of the Bombay High Court allowed the writ petition. The reasoning of the learned Single Judge is to be found in the following observations : "It is accepted on behalf of the respondents that the extruded tubes are sold in the market either in their maked (naked?) form or after lacquering or printing or fitting with caps thereon. It is accepted that the extruded tubes are known in the market although they are neither lacquered nor printed or fitted with caps. The respondents, by Paragraph 5 of the return, have further conceded that certain processes are carried out after the process of extrusion takes place... what is liable for excise duty is a manufactured product of extruded tubes .... only those processes which are incidental or anciallary to the completion of the manufactured product would come within the expression of `manufacture'.... It is undoubtedly true that the excise duty is leviable on an article when it is taken outside the factory and the rate of the duty is determined with reference to the date of which the artcle is taken outside the place of manufacture. But that fact would not enable the respondents to take into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant time, read as follows : "ALUMINIUM (a) (i) In any crude form including ingots, bars, blocks, slabs, billets, shots and pellets. (ii) Wire bars, wire rods and castings, not otherwise specified. (b) Manufacturers, the following : namely, plates, sheets, circles and strips in any form or size, not otherwise specified. (c) Foils, that is a product of thickness (Excluding any backing) not exceeding 0-15 millimetres. (d) Pipes and tubes, other than extruded pipes and tubes. (e) Extruded shapes and sections including extruded pipes and tubes." Subsequently, Clause (f) has been added in the above Tariff Item, which reads : "(f) Containers, plain, lacquered or printed or lacquered and printed". The definition of "manufacture", as inserted by the Finance Act (No. 25) of 1975 with effect from March 1, 1975 reads, insofar as is relevant, thus : "(2f) `Manufacture' includes any process incidental or ancillary to the completion of a manufactured process; and ........" Section 4 provides that where the duty of excise is chargeable with reference to value, such value shall, subject to other provisions of the said section, be deemed to be the normal price thereof. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bber Factory Limited). 9.For these reasons, it is also not possible for us to agree with the decision of the Gujarat High Court in Extrusion Process Private Limited. 10.So far as the value of the plastic cap is concerned, it is submitted by the learned Counsel for the assessee that it is not only supplied by the purchaser to the assessee but that it does not form part of the tube which is sold by the assessee to the purchaser. It is further submitted by the learned Counsel that fitting of the cap to the tube does not amount to manufacture, because these caps are manufactured separately and by another manufacturer. The learned Counsel invited our attention to the order of this Court dated November 20, 1989 dismissing Civil Appeal No. 1930 of 1984 filed by the Collector of Central Excise, Calcutta, against the appellate Tribunal's order in the case of Metal Box of India Ltd., Calcutta v. Collector of Central Excise itself [reported in 1983 (13) E.L.T. 956] where under the Tribunal had upheld the aforesaid contention of the Metal Box. We are, however, of the opinion that whether the cap forms part of the tube cleared and sold by the respondent, or not, is a question of fact to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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