- (1.) Civil Appeal No. 6071 of 2001: The Respondent herein is a manufacturer of paints and varnishes falling under Chapter 32 of the Central Excise Tariff Act, 1985 (for short the 'Act')- It is the case of the Respondent that the finished products manufactured are packed in tins and plastic containers which are then put in carton boxes and sold to the wholesale dealers for the purpose of transportation. The Respondent had filed a claim of refund for Rs. 1,22,740/- in the year 1989 claiming that the duty paid on the cost of cartons cannot be included in the assessable value of the final product i.e. paints as held by the Supreme Court in Godfrey Philips Ltd., 1985 22 ELT 306.
(2.) A show cause notice dated 4th May, 1989 was served on the Respondent asking as to why the refund claim should not be rejected. After eliciting reply, the Assistant Collector of Central Excise passed order dated 5th September, 1989 rejecting the refund on merits and also on the ground that it was time-barred. Being aggrieved, the Assessee/respondent filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) affirmed the order of the assessing authority and dismissed the said appeal. Undeterred, the Respondent approached the Central Excise Gold (Control) Appellate Tribunal and this time the Respondent succeeded in its attempt as the appeal of the Respondent has been allowed, holding that the value of the carton boxes could not be included for the purpose of calculating the assessed amount.
(3.) Learned Counsel appearing for the Appellant has drawn our attention to the judgment of this Court in Commissioner of Central Excise, Allahabad and Ors. v. Hindustan Safety Glass Works Ltd. and Ors., 2005 3 SCC 468. On the basis of this judgment submission of the Appellant is that once the packaging is done to make the goods saleable in the market then the cost of the packing is to be included for the purpose of calculating the excise duty. He has referred to para 13 of the said judgment where the Court took note of its earlier decision in the case of Govt. of India v. Madras Rubber Factory Ltd, 1995 4 SCC 349 and noticed the test laid down therein, namely, whether a particular packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate in certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty.;