BHADRACHALAM PAPER BOARDS LIMITED Vs. COLLECTOR OF CENTRAL EXCISE HYDERABAD

JUDGEMENT

(1.) This is a reference under Section 35-G of the Central Excises and Salt Act, 1944. The assessee Is a public limited company engaged in the manufacture of different varieties of paper and paper for captive consumption exclusively. Central Excise duty is paid on the wrapping paper manufactured by the applicant. Thereafter, it is used for wrapping other varieties of paper and paper boards for convenient distribution of these products. The assessee made an application to the Assistant Collector of Central Excise, Warangal Division for permission to avail of proforma credit under the provisions of Rule 56-A of Central Excise Rules, 1944 in respect of the duty initially paid in respect of the wrapping paper. The plea was rejected by the Assistant Collector. On appeal, the Appellate Collector and remanded the matter for de novo disposal. On this occasion again the Assistant Collector held that the wrapping paper used for packing other varieties of paper in the applicants factory is not entitled to the benefit of Rule 56A. The applicant appealed. The Appellate Collector, Central Excise, allowed the appeal by his order dated 24-8-1982. Aggrieved by the decision of the Appellate Collector the Department preferred an appeal to the Customs, Excise and Gold Control Appellate Tribunal, which allowed the appeal by its order dated 30-7-1983. The Tribunal agreed with the Assistant Collector that the procedure under Rule 56-A is not available to the applicant. The Tribunal was of the opinion that inasmuch as the wrapping paper in the present case "is used not for its own convenient distribution but for the distribution of the varieties of paper," Rule 56-A "intended to cover certain finished products to enable their more convenient distribution." It also observed that the inclusion of the value of the wrapping paper in the value of the packaged goods as per Rule 4(4) (d) (i) of the Act does not amount to double taxation and that in any event such double taxation is not prohibited by law. Thereupon the assessee applied to the Tribunal for making a reference which has accordingly been made. The question referred for our opinion is :

(2.) For a proper appreciation of the question, it is necessary to refer to certain provisions of the Act and to Rule 56-A. Section of the Act is the charging section. It provides for levy and collection of duties of excise on all excisable goods produced or manufactured in India at the rates set forth in the First Schedule. Sub-section (2) empowers the Central Government to fix the tariff values of the enumerated articles for the purpose of levying duties. Section 4 of the Act prescribes the several criteria for determining the value of excisable goods for charging of duty of excise. It is unnecessary to refer to the provisions of Section 4 except to the definition of "value" in Clause (d) thereof. It reads as follows : "(d) "value" in relation to any excisable goods.- (i) where the goods are delivered at the time of removal in a packed condition, includes the cose of such packing except the case of the packing which is of a durable nature and is returnable by the buyer to the assessee; Explanation-In this sub-clause "packing" means the wrapper, container, bobbin, pirn, spool, reel or warp of any other thing in which or on which the excisable goods are wrapped, contained or wound. (ii) does not include the amount of the duty of excise, sales-tax and other taxes, if any, payable on such goods and, subject to such rules, as may be made, the trade discount (such discount not being refundable on any account whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sales." According to this definition, the value of wrapping paper used as packing is liable to be included in the value of the packaged goods for the purpose of charging of excise duty. The assessee says that this amounts to levying of duty twice over on the same goods. Item 17 of the First Schedule relates to paper and paper boards. The entry reads as follows :-

(3.) Rule 56-A provides for a special procedure to provide relief against double incidence of duty. It carries the heading `Special procedure for movement of dut paid material or component parts for use in the manufacture of finished excisable goods." In so far as it is relevant, the rule reads as follows :-