Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | assessable value of glass bottle central excises |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Central Excises and Salt Act, 1944 : Section 4(4)(d)(i)-Assessable value of glass bottles-Determination of-Cost using of the packing, same for if inclusive-Assessee packing its products-Bottles manufacturing delivered glass in bottles loose and condition buyer - at factory gate in course of wholesale trade-At option of buyer goods packed for safe transit by assessee and cost reimbursed to them and in some cases ~ buyer supplying packing materials and assessee charging initial packing charges-Tribunal held that the packing charges collected by assessee not includible in the assessable value of glass bottles except initial packing charges towards packing of goods in durable and returnable containers-On appeal held : Decision of Tribunal based on factual finding that ,packing is not necessary for the articles in condition in which it is generally sold in the wholesale market at the factory gate and cannot be termed perverse-Hence, order of Tribunal upheld Section 11A -Assessee challenging in Writ Petition demand of duty raised-lnterim Order and subsequent extension thereof-Issue of show cause notices during pendency of Writ Petition, demand being subject to the decision - of High Court-If barred by limitation-Held : Order of High Court stayed only recovery/collection and not levy-There is difference between levy and collection-Moreover, Department issued notices as the interim order did not restrain issuance of notices-Thus, Tribunal rightly held that notices barred by limitation. Respondent-assessee is engaged in manufacturing of various types of glass bottles and the buyers use the same for packing consumer products like milk, soft drinks, medicines, hair-oil, beer etc. manufactured by them- According to the assessee, these bottles are delivered by it in loose condition without packing at the factory gate in the course of wholesale trade. In many cases at the option of the buyer goods are packed for safe transit and the cost is reimbursed by the customer. In some cases buyers supply packing material and manufacturer charges ex-factory prices for goods along with extra initial packing charges for extra services rendered. In any event, the packing materials used by manufacturer are of durable and returnable nature and the buyers are entitled to refund of cost on return. Assessee got price-lists approved without the inclusion of packing charges though these charges were reflected in the price list depending upon the type of packing used. Department issued show-cause notices totalling in all to 111, raising demand of duty on packing charges realised by the assessee. Assessee filed writ petition challenging the notices and subsequent demands raised. Interim order was passed which was further extended. High Court disposed of the writ petition. During the pendency of the writ petition, show cause notices were issued raising demand of duty on packing charges which was subject to the decision of High Court in the writ petition. Both the Adjudicating Authority and the Appellate Authority confirmed the demand of duty on packing charges. Thereafter, assessee filed appeals before the CEGAT contending that the packing expenses are not included in the assessable value; that 24 show cause notices were barred by limitation in terms of Section 11A of the Act; that interim orders passed by High Court had not restrained issuance of show-cause notice; that if Revenue understood that there was restraint on issuing show-cause notices, it could not have issued 77 notices; that the interim orders related to realization and not levy; that as regards nature of investment covered by show cause notice, Adjudicating Authority held that the assessment were final, but were provisional in certain aspects, and the Appellate Authority held it to be provisional and as such the notices were within time. Tribunal allowed the appeals filed by the respondent. It held that the packing charges except initial packing charges towards packing of goods in durable and returnable containers, collected by the assessee are not includible in the assessable value of glass and glassware; and that the 24 notices were barred by limitation. Hence the present appeals. Appellant-Department contended that CEGAT's view that packing charges collected by the assessee are not includible in the assessable value of glass and glassware ran counter to the clear language of Section 4(4)(d)(i); that it is not a requirement in law that the goods at the factory gate should be on marketable stage; and that both the assessee and the Department knew that the assessments were not final but were provisional, therefore, the Authorities had rightly held that only two notices were barred by limitation. |
Judge | Hon'ble Dr. Justice Arijit Pasayat |
Neutral Citation | 2005 INSC 132 |
Petitioner | Commissioner Of Central Excise, Calcutta |
Respondent | M/s. Hindustan National Glass And Industries Ltd. |
SCR | [2005] 2 S.C.R. 744 |
Judgement Date | 2005-03-11 |
Case Number | 7313-7421 |
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