A.Banerji, J. - (1.) We have heard Mr. S.P. Gupta, learned counsel for the petitioner and Mr. Ravi S. Dhavan, learned counsel for the respondents.
(2.) The question involved in this writ petition is whether the value of the packing material, in which the carton containing the dry cells are sold to the wholesalers, is also to be taken into consideration for the purpose of excise duty leviable on the dry cell. A similar matter had earlier come for consideration in a Writ petition before this court and this court had taken the view that the price of the wooden/corrugated box packing was to be added to the value of the dry cell batteries for the purposes of excise duty under the Central Excises and Salt Act, 1944. A special leave petition against the above decision is pending in the Supreme Court. The petitioner's claim in the present petition is that the question now involved in the petition pertains to a different period and in any event the law, laid down by their Lordships of the Supreme Court in the case of Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369 makes it clear that secondary packing material is not to be taken into consideration for the purpose of excise duty.
(3.) Learned counsel for the respondents, however urged that the law on the subject has been laid down in the case of Union of India v. Bombay Tyre International 1984 1 SCC 467 which case has been referred to in the later decision of the Union of India v. Godfrey Philips India Ltd. (Supra). The learned counsel further urged that there is no basic change in the law to warrant complete exemption of excise duty on the packing material. The observations made in the later case of their Lordships pertained to the marketing of cigarettes in bigger cartons which contained a number of smaller cartons of packets of cigarettes. It was urged that the difference was one of degree only and each case would depend on its own facts. It was stated that the matter was sub judice before the Supreme Court and as such the Superintendent of Central Excise had not committed any error in the exercise of jurisdiction in passing the impugned order dated 19-12-1985 and declining to take any action on the fresh price list submitted by the petitioner.;