Geep
Industrial Syndicate Ltd. Vs. Collector of Central Excise, Allahabad [1997] INSC 121 (4 February 1997)
B.P.
JEEVAN REDDY, K.S. PARIPOORNAN B.P.
JEEVAN REDDY, J.
ACT:
HEAD NOTE:
THE
4TH DAY OF FEBRUARY, 1997 Present:
Hon'ble
Mr. Justice B.P. Jeevan Reddy Hon'ble Mr. Justice K.S. Paripoornan Soli J. Sorabjee,
Sr. Adv., V.Lakshmikumaran, V. Balachandran and Ms. Nisha Bagchi, Advs. with
him for the appellants in C.A.Nos. 4608-12 and 4960/96 and Respondent in C.A. No. 14407/96.M. Gaurishankar
Murthi, G. Prakash and V.K. Verma, Advs. for the Respondents in C.A.No.
4608-12/96, 4960/96 and Appellants in C.A.
No. 14407/96
The
following Judgment of the Court was delivered:
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.
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 E.L.T. 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) S.C.C.467] and Government of India v. Madras Rubber
Factory Limited [1995 (4) S.C.C.349], the assessee is entitled to succeed. Sri Gauri
Shankar Murthy, learned counsel 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.
Inasmuch
as differing interpretations are placed upon the principles affirmed in Madras
Rubber Factory, 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:
"The
provision 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 assessees
and recognised to some extent in the decisions of this Court including Bombay Tyre
International. 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." In Para 25, the Court referred to the
holding in Bombay Tyre International on this aspect to the effect: "(I)t
seems to us that the degree of secondary packing which is necessary for putting
the excisable article in the condition in which it is generally sold in the
wholesale market at the factory gate is the degree of packing whose cost can be
included in the `value' of the article for the purpose of the excise
levy." Reference was then made to the decision of this Court in Union of
India v. Godfrey Phillips India Limited [1985 (4) S.C.C. 369]. It was pointed
out that the said decision was rendered by the very same Bench which decided
Bombay Tyre International. It was also pointed out that the test evolved by the
majority [R.S.Pathak and A.N.Sen,JJ.] and minority [P.N.Bhagwati, CJ.] was
identical and that the different conclusions arrived at by them was mainly
attributable to the difference in perception of the factual situation [see Para
30]. The Court then referred to the decision in Geep Industrial Syndicate
Limited and pointed out again that the factual position in this case too was
perceived to be the same as in Godfrey Phillips, viz., that the wooden boxes
were not necessary for putting the torches and batteries in the conditions in
which they are generally sold in the wholesale market at the factory gate.
It was
stressed that so far as the test applicable is concerned, there was no
departure from the one enunciated in Bombay Tyre International.
The
decision in Madras Rubber Factory next referred to the opinions of Sabyasachi Mukharji,
J. and S. Ranganathan, J. in C.C.E. v. Ponds (India) Limited [1989 94)
S.C.C.759] and expressed its entire and respectful agreement with the test
evolved by Mukharji, J. which reads:
"The
question is not for what purpose a particular kind of packing is done but the
test is 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 and if 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........The correct position seems to be that the cost
of that much of packings, be they primary or secondary, which are required to
make the articles marketable would be includible in the value. How much packing
is necessary to make the goods marketable is a question of fact to be
determined by application of the correct approach." The Bench also
expressed its respectful concurrence with the opinion of Ranganathan, J. where
the learned Judge pointed out that the words "which is necessary" in
the test evolved in Bombay Tyre International has led to certain further
refinement in Godfrey Phillips and Geep industrial Syndicate and then observed:
".......in
judging the condition of packing whose cost is to be included in the assessable
value, one should go by the conduct of the parties and the nature of the
packing in which the goods generally are - not, can be - placed in the
wholesale market.......what is to be really seen in this: What is the condition
of packing considered by the manufacturers, having regard to the nature of the
business, the type of goods concerned, the unit of sale in the wholesale market
and other relevant considerations, to be generally necessary for placing the
goods for sale in the wholesale market at the factory gate. In Godfrey Phillips
and Geep, this Court was concerned with a special type of packing which seemed
intended more to protect the packed goods against injury or damage rather than
to enable it being placed in the market. Indeed, in Godfrey Phillips, this was
a factual position that had been accepted by the departmental authorities
earlier for a period of a little over six years which they later wanted to go
back upon." After considering some other cases, the decision in Madras
Rubber Factory stated the test in the following words:
"The
test is: whether packing, the cost whereof is sought to be included is the
packing in which it is ordinarily sold in the course of a wholesale trade to
the wholesale buyer. In other words, whether such packing is necessary for
putting the excisable article in the condition in which it is generally sold in
the wholesale market at the factory gate. If it is, then its cost is liable to
be included in the value of the goods; and if it is not, the cost of such
packing has to be excluded." Sri Sorabjee placed a good about of emphasis
upon the word "necessary" occurring in the above test. It appeared as
if the learned counsel was emphasising the said expression to the exclusion of
all others in the said test. The test, as stated by this Court in Madras Rubber
Factory, is "whether packing, the cost of where of is sought to be
included, is the packing in which it is ordinarily sold in the course of a wholesale
trade to the wholesale buyer". The same was reiterated employing the words
in Bombay Tyre International, to wit: "In other words, whether such
packing is necessary for putting the excisable article in the condition in
which it is generally sold in the wholesale market at the factory gate".
We think it appropriate to point out that the test evolved by this Court in
Madras Rubber Factory should be read and understood in the context of the
preceding discussion including the express and repeated affirmance of the test
evolved by Mukharji and Ranganathan, JJ. in Ponds India Limited which is, in
truth, nearer to the definition of the word "value" in Section
4(4)(d)(i) of the Act. The word "necessary" in the test evolved by
Bombay Tyre International and as reiterated in Madras Rubber Factory need not
be over-emphasised. According to madras Rubber Factory, the true test is in
terms of the one evolved by Mukharji and Ranganathan, JJ. in Ponds India
Limited, viz., "whether packing, the cost whereof is sought to be included
is the packing in which it is ordinarily sold in the course of wholesale trade
to the wholesale buyer".
While
judging the necessity of the packing, what one must see is whether it is
necessary for putting the excisable article in the condition in which they are
generally sold in the wholesale market at the factory gate and this must be
judged from the conduct of the manufacturer himself.
Ordinarily
speaking, no manufacturer would provide a packing which is not necessary for
putting the excisable articles in the condition in which they are sold in the
wholesale market at the factory gate. [Where a special kind of packing is
provided by the manufacturer at the specific request of a buyer, the situation
would be different but that is not the situation herein.] Therefore, one can
proceed on the footing that whatever packing is provided at the time of
delivery of the goods at the gate is the packing necessary for the purpose of
putting the excisable articles in the condition in which they are generally
sold in the wholesale market at the factory gate. Unless the manufacturer
establishes that a particular packing, provided at the time of such delivery,
was not really necessary for that purpose, the value of the packing cannot be
excluded. In our respectful opinion, the above is the correct understanding of
the principle and the ratio of Madras Rubber Factory.
Now
coming to the facts of the case before us, we find that the factual situation
considered by this Court in 1986 in Geep Industrial Syndicates [this very assessee]
and the factual situation now obtaining is no different. It was held by this
Court in the said decision that packing in wooden boxes was not necessary for
putting the articles in the condition in which they are generally sold in the
wholesale market at the factory gate and that it was done only for the purpose
of protecting them from damage during the course of transport, i.e., transport
after delivery. The 7-ply corrugated cartons have now taken the place of wooden
boxes.
But
for this, there is no change in the factual situation since 1986. In such a
factual situation, it would not be permissible for us to arrive at a different
conclusion than the one arrived at in 1986*. On this
____________________________________________________________ * The decision in Geep
Industrial Syndicate was actually rendered on April 2, 1986 though reported in
Excise Law Times in the year 1992.
ground
alone, we hold in favour of the assessee.
For
the reasons recorded hereinabove, Civil appeals Nos. 4608-4612 of 1996 and 4960
of 1996 [preferred by the assessee] are allowed and Civil Appeal No. 14407 of
1996 [preferred by the Revenue] is dismissed. There shall be no order as to
costs.
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