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TMI Blog2002 (7) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... certain expenses claimed as post-manufacturing expenses from the assessable value while approving the classification list of the petitioners. The petitioners have claimed refund of Excise duty amounting to Rs. 40,18,805.60 ps. with 18% interest in respect of the goods cleared by them during the period from 12th November, 1977 to 12th November, 1980, on the ground that certain post-manufacturing expenses have been erroneously included in the assessable value and excise duty has been erroneously paid by them. 2.During the pendency of the petition the Respondents were directed by this Court to deposit certain amount in Court and the petitioners were permitted to withdraw that amount on furnishing security. Accordingly the Respondents had depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd claim as time-barred and refusal to deduct from the assessable value, post-manufacturing expenses such as secondary packaging and bill discount charges only. 5.As regards the rejection of refund claim for the period from 12th November, 1977 to 12th November, 1980 is concerned it was submitted that by a letter dated 4th January, 1980 the Petitioners had informed the Respondents that, they were paying duty under protest and, therefore, refund claim at least from the date of payment of duty under protest ought to have been held to be within time. A perusal of the letter dated 4th January, 1980 (Exhibit 'A' to the petition) clearly shows that in the said letter nothing was stated as to which item is a post-manufacturing expense and which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clear finding given by the adjudicating authority and in the light of decision of the Apex Court in the case of Union of India v. MRF reported in 1995 (77) E.L.T. 433, the cost of the secondary packaging in which the goods are ordinarily sold to the wholesalers is liable to be included in the assessable value. In this view of the matter denial of deduction on account of secondary packaging from the assessable value as post-manufacturing expenses is justified. Apart from that, it is not the case of the assessee that the secondary packing is of a durable nature and is returned by the buyer to the assessee. Therefore, the cost of such packing has to be included in the assessable value. 7.As regards the claim of deduction on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in favour of the Respondents and the same has been renewed from time to time and the said bank guarantee continues to be in force. Since, we have upheld the validity of the order impugned in the Petition, the Respondents would be entitled to recover the balance amount of Rs. 14,73,388/- with interest at the rate of 12% per annum from the date of said order till payment by encashing the bank guarantee furnished by the Petitioners and or by any other mode permissible in law. 9.In this view of the matter, the petition is dismissed. However, in the facts and circumstances of the case, there will be no order as to costs. 10.At this stage, Mr. Dharmadhikari, learned Counsel appearing on behalf of the Petitioner seeks stay of the execution o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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