Customs, Excise and Gold Tribunal - Mumbai
Antifriction Bearing Corpn. Ltd. vs Asstt. Collector Central Excise on 30 November, 1989
Equivalent citations: 1990(26)ECR439(TRI.-MUMBAI)
ORDER
S.V. Ramakrishnan, Collector C.E. Appeals
1. Being aggrieved by the Order-in-Original F. No. V(Gen)l8-64/88/2732 dated 5-6.4.1988 passed by the Assistant Collector of Central Excise, Pune I Division Pune rejecting the refund claim of Rs. 27,815.76 being inadmissible, M/s. The Antifriction Bearings Corporation Ltd., Lonevla - 410401 have filed this appeal.
2. The appellants have stated in their appeal petition that cardboard cartons and cellophane wrapping is considered as the essential packing for the Ball and Roller Bearings. Whenever the bearings have to be despatched to distant places, cartons are further packed into wooden crates for the sole purpose of facilitating of the transport and also to protect the bearings from damage in the course of transportation. In their case, the issue stands settled by the Order of the Collector of Central Excise (Appeals) vide his Order-in-Original No. H.N. 605 PN-154/86 dated the 9.1.1987, wherein he has categorically held that the impugned secondary packing is not includible in the assessable value. While passing this Order, the Collector, Central Excise (Appeals) has relied on the judgment of the Supreme Court in the case of Bombay Tyres International and Godfrey Philips.
3. The Appellants were heard by me through Shri N.D. Khosla, Excise Consultant on 22.6.1989 where he reiterated the points stated in the appeal petition and also filed a written submission.
4. Shri Khosla stated that the pattern of secondary packing has been in existence for a long time and continues to be the same. Two similar refund claims on the same issue were rejected by the Assistant Collector, but were allowed to them on appeal to Collector (Appeals). In the first case, the department filed an Appeal against Collector (Appeals)'s order, but CEGAT remanded the case to the Collector (Appeals) with direction to decide de novo on the guidelines laid down in Supreme Court's judgments in the cases of Bombay Tyre International and Godfrey Philips, Collector Shri. H.N. Rao thereon decided in party's favour and allowed the appeal. In the second appeal Shri. A.N. Prasad, Collector (Appeals) followed Shri. H.N. Rao's above order and allowed the appeal. He also filed copies of the Appellate decisions and further stated despite the said decisions, the Assistant Collector continues to defy the CEGAT and Appellate decisions and refused the refund claims.
5. I have considered the submissions made and have gone through the impugned order. The issue for determination in this case is whether the cost of secondary packing of the appellant's products in wooden cases is includible in the assessable value. My predecessor, Collector (Appeals) Shri H,N. Rao has already decided the issue. This was again confirmed by Collector (Appeals) Shri A.M. Prasad. I see no justification for my re-opening the issue and thus sitting in judgment over the merits of the order of my predecessor Collector as long as the pattern has not changed as Appellant claims. On this point the Assistant Collector has not commented whether the pattern has not changed).
6. Hence I set aside the impugned order and direct the Assistant Collr. to decide the refund claim in the light of the decisions of Collector Shri. H.N. Rao and Shri A.M. Prasad, if there is no change in the nature and pattern of packing (which he has to verify and satisfy).
This Appeal is allowed to the above extent.