TMI Blog2000 (9) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... Orders dated 5-6-89, 8-2-90, 28-1-91 and 15-10-91 were valued by the manufacture for the purpose of payment of duty without adding the value of the container in which goods were packed. If the value of the drums were added to the value of the calcium carbide, during the financial year 1991-92, the cost of the goods manufactured would exceed Rs. 2 Crores and appellant would not be entitled to the benefit of exemption Notification No. 175/86. For getting the benefit of that Notification the value of the goods manufactured were shown without value of the container. 2.Show cause notice dated 9-7-93 was issued to the appellant calling for their explanation for realising the differential duty of Rs. 10,70,841/- short paid on account of wilful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returnable. The fact that these steel drums are durable and returnable is not in controversy. The controversy is whether there was any arrangement between the manufacturer and the buyer for the return of this steel drums. Since the steel drums were returnable their value should not have been added to find assessable value. According to the Department, the contract entered into between the manufacturer and BHEL gave no room for raising a contention that these steel drums were returnable. Agreement specifically stated that purchaser, BHEL was to pay for the container. No provision was incorporated in the contract for the return of the steel drums. According to the ld. Departmental representative the contracts entered into between the manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urable. Even if they were durable and returnable the agreement entered into between the parties made it non-returnable. Second Purchase Order No. 3090061 dated 8-2-90 mentioned that the terms and conditions will be as per Purchase Order No. 3090027 dated 3-8-89. The goods namely calcium carbide covered by this Purchase Order was also to be supplied by the manufacturer in steel drums on non-returnable basis. The third Purchase Order No. 3000042 dated 28-1-91 provided that packing charges will be payable by BHEL. Annexure to this Purchase Order stated that calcium carbide should be supplied in conformity with safety regulations as laid by Chief Controller of Explosives, Nagpur, Govt. of India and that this should be packed in water tight and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent between the manufacturer on the one hand and the buyer on the other hand for the return of the durable containers. 7.Before issue of show cause notice, the durable and returnable nature of the container was taken up by the Excise authorities with BHEL. BHEL replied by letters dated 6-1-93 and 5-8-93. In the first letter they specifically stated that the firm was supplying calcium carbide duly packed steel drums on non-returnable basis and the cost of the drum was shown in the quotation separately. They further stated that at no point of time they returned any empty drums to the manufacturer. In the second letter dated 5-8-93 it was clarified that the manufacturer included in the invoices a provision that in case the container is retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordships that the actual return or extent of return is not relevant and 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. On the facts of this case, we are clear in our mind that there was no arrangement or agreement between the parties wherein the manufacturer was obliged to accept the returned container and refund its value. Some endorsement made by the manufacturer in this case were self-surviving. They were against the specific terms of the contracts entered into between the parties. No arrangement or agreement between the seller and the buyer can be spelled out on the facts of this case for the return of steel drums. The test laid down by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the ld. Counsel, had not been approved by the department by any order. Nor has he got a case that the appellant pursued the matter with the authorities to get the price-lists approved. Falsity of this contention is further brought out from the letter dated 9-2-93 sent by the assessee. That letter was written by the appellant to the Superintendent of Bhopal on 4-2-93. It was candidly admitted therein that no price list was ever filed by them after 29th May, 1989. In view of this categorical admission made by the appellant the contention that price-lists was filed on 24-10-91 alongwith the purchase order cannot be accepted. At no point of time Departmental authorities were made known of the actual terms of the contract under which c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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