- (1.) These appeals are preferred against the orders of Central Excise and Gold (Control) Appellate Tribunal. Civil Appeals Nos. 4608-4612 of 1996 and 4960 of 1996 are preferred by the assessee, Geep Industrial Syndicate Limited, while civil Appeal No. 14407 of 1996 is preferred by the Revenue. Though preferred against different orders, the issue is one and the same. The assessee is engaged in the manufacture of batteries and torches. These goods are initially packed in small boxes. These small boxes are packed in medium size cartons. The medium size carton are in turn packed in larger corrugated cartons, called "7-ply corrugated cartons." The assessee does not dispute that the value of small boxes and medium size cartons is liable to be included in the value of the goods packed. The dispute is only with respect to the inclusion of the value of 7 ply corrugated cartons. Differing views have been expressed by different Benches of the Tribunal on this question in the case of this very assessee, as would be evident from the fact that while against some orders, the assessee has filed appeals, certain other orders have been appealed against by the Revenue.
(2.) Sri Soli J. Sorabjee, learned counsel appearing for the assessee, submitted that the factual and legal situation in the present appeals is the same as was considered by this Court in Geep Industrial Syndicate Limited v. Union of India, (1992) 61 ELT 328. Learned Counsel submitted that the said decision rendered by a three-Judge Bench between the same parties is binding and conclusive on the question at issue. Sri Sorabjee submitted further that even according to the principles enunciated in Union of India v. Bombay Tyre International, (1984) (1) SCC 467: (AIR 1984 SC 420) and Government of India v. Madras Rubber Factory Limited, (1995) 4 SCC 349: (1995 AIR SCW 2654), the assessee is entitled to succeed. Sri Gauri Shanker Murthy, however appearing for the Revenue, however submitted that according to the principles affirmed by this Court in Madras Rubber Factory after a full consideration of all the earlier decisions, the value of 7-ply corrugated cartons is also liable to be included in the value of the goods packed.
(3.) Inasmuch as differing interpretations are placed upon the principles affirmed in Madras Rubber Factory, (1995 (4) SCC 349: 1995 AIR SCW 2654), it is necessary to ascertain, in the first instance, the precise principle enunciated in the said decision. After referring to the definition of "value" in Section 4(4) (d) (i), this Court observed in Para-24 (of SCC): (Para 29 of AIR). "The provisions in the sub-clause is a plain one and does not admit of any ambiguity. What it says is that where the goods are delivered in a packed condition, at the time of removal, the cost of such packing shall be included and that only where such packing is of a durable nature and is returnable by the buyer to the assessee, should the cost of such packing be not included in the value of the goods. The concept of primary and secondary packing has, however, been urged by the assesses and recognised to some extent in the decisions of this Court including Bombay Tyre International, (AIR 1984 SC 420). While it may not be possible for us to wish away the said distinction, we cannot but remind ourselves that this is a refinement not borne out by the express language of the enactment and must, therefore, be resorted to with care and circumspection.";