Customs, Excise and Gold Tribunal - Delhi
Kalyanpur Cements Ltd. vs Collector Of C. Ex. on 28 June, 1989
Equivalent citations: 1990ECR136(TRI.-DELHI), 1990(45)ELT500(TRI-DEL)
ORDER S. Kalyanam, Member (J)
1. No. E/Misc./291/89-A. - This is an application for change of Cause Title consequent on the change of the name of the Company. Petition is allowed and Cause Title is directed to be amended accordingly.
2. E/465/81-A. - This appeal is directed against the order of the Appellate Collector of Central Excise, Calcutta dated 5-3-1981 confirming the order of the Assistant Collector of Central Excise, Gava dated 28-9-1979.
3. The short question that arises for our consideration in the present appeal is whether costs of packing is includible in the assessable value or not. The appellants herein are manufacturer of Grey Portland Cement and the period involved in the present appeal is 1-10-1975 to 8-1-1976. Shri Gopal Parshad, learned Advocate, at the out-set submitted that at the relevant time, Cement Control Order issued under the Essential Commodities Act, 1955 was in force and Ministry of Industries and Civil Supplies, Government of India issued a circular under Reference No. CC/CC/8/(l)75 dated 1-10-1975 under the Cement Control Order to the effect that the serviceable second hand jute bags may be collected by the Bag Collecting Agents of the respective cement factories (to be collected by them at the consumers' work sites on Cash and Carry basis) and the resale price for the period 1-10-1975 to 31-12-1975 is Rs. 92.54 per 100 bags. Sales tax where leviable is extra. The learned Consultant for the appellants contended that the price having been statutorily fixed and manufacturers being under statutory obligation to refund the money on the packing materials, the packing charges would not become includible in the assessable value as has been held by the Appellate Collector in the impugned order. The learned Consultant in this context placed reliance on the ratio of the ruling of the Larger Bench of this Tribunal in the case of Associated Cement Companies Ltd., Jabalpur and Others v. Collector of Central Excise, Indore and Others. It was further urged that Larger Bench Ruling of this Tribunal was also subsequently followed in the case of Collector of Central Excise v. Begalkot Udyog Ltd., reported in 1989 (41) E.L.T. 647 (Tribunal). The learned Consultant, therefore, pleaded that the impugned order may be set aside and consequential relief granted.
4. Shri Sharma, learned S.D.R. submitted that notwithstanding the ruling of the Tribunal in favour of the appellants, he would reiterate the reasoning of the Original Authority as well as Appellate Authority in the impugned orders.
5. We have carefully considered the submissions made before us. The question with regard to the includibility of the cost of packing materials in the assessable value for the goods in question will have to be considered in the context of the Cement Control Order issued by the Government of India which admittedly was in force at the relevant time. We have gone through the Cement Control Order as well as Circular is sued by the Government of India and referred to supra. As rightly contended by the learned Consultant for the appellants, the manufacturers would be under the statutory obligation to refund the cost of the packing materials in terms of the Cement Control Order as well as circular issued thereunder. The price of the cement has also been statutorily fixed in terms of the said Control Order. Under these circumstances, we are of the view that the cost of packing materials would not be includible in the assessable value of the goods in question i.e., Grey Portland Cement. We are also fortified in this view by the ruling of the Larger Bench in the case of Associated Cement Companies Ltd., Jabalpur and Others v. Collector of Central Excise, Indore and Ors., referred to supra. As a matter of fact, the Larger Bench of this Tribunal in the Associated Cement Companies case has followed the ratio of ruling of Madhya Pradesh High Court in the case of Birla Jute Manufacturing Company Limited v. Union of India and Others [1980 (6) E.L.T. 593 (M.P.)], as well as the ruling of Andhra Pradesh High Court in the case of Keso Ram Cements v. Union of India and Ors. reported in 1982 (10) E.L.T. 214 (A.P.). The Larger Bench has also referred to the ruling of Karnataka High Court in Writ Petition Nos. 13625/77, 16563 and 16564/79 in case of Bagalkot Udyog Limited v. Union of India and Ors.. We also note that Special Bench of this Tribunal in the case of Collector of Central Excise v. Begalkot Udyog Limited reported in 1989 (41) E.L.T. 647 (Tribunal), has taken the same view following the ratio of the ruling referred to above. Therefore, following the above rulings, we hold that cost of packing material is not includible in the assessable value of the Grey Portland Cement. In this view of the matter, the impugned order appealed against is set aside and this appeal is allowed with consequential relief.