Customs, Excise and Gold Tribunal - DelhiCollector Of Central Excise vs Kusum Products Limited on 23 September, 1988Equivalent citations: 1989(39)ELT132(TRI-DEL)ORDER
 

K.L. Rekhi, Member (T)1. The proceedings initiated with the aforesaid Revision Show Cause Notice of the Central Government issued under the thenSection 36(2)of the Central Excises and Salt Act, 1944 have on transfer to this Tribunal been taken up as if they were an appeal filed by the department before this Tribunal.2. The facts in brief are that the goods manufactured by the respondents were charged to duty by including the value of the can) board cartons, in which the goods were packed, in the assessable value of the goods. The respondents filed a refund claim before the Assistant Collector claiming that the cost pf cartons ought not to be Included in the assessable value. The Assistant Collector held that such value was correctly ineligible and, accordingly, he rejected the refund claim. In appeal, the Appellate Collector held that the card board cartons were durable and returnable containers and hence their cost was deductible from the assessable value in terms ofSection 4(4)(d)(i)of the Act. The Central Govt. was tentatively of the view that the order passed by the Appellate Collector was not correct, legal and proper and that card board cartons should not be considered as durable and returnable containers.3. Before us, the respondents very fairly submitted that though their cartons could be put to use more than once, they had no agreement or arrangement with their buyers to the effect that the cartons were returnable to the assessee and, therefore, in view of the judgment of Hon'ble Supreme Court in [1988 (36) ELT 727 (SC)] Mahalaxmi Glass Works, they could not claim that the cartons were returnable.4. The respondents, however, contested the Revision Show Cause Notice on two grounds. Their first ground is that the Revision Show Cause Notice was time barred in terms of the, third proviso toSection 36(2), We do not agree with them. This proviso applied to cases of short levy or non-levy of duty or of erroneous refund of duty. The respondents themselves agree that in this case there was no snort levy or non-levy since the full duty had been collected from them. This was also not a case of erroneous refund because no amount of the duty paid was refunded to them. The order of the Appellate Collector related purely to the issue whether the cost of card board cartons could be included in the assessable value of soap and detergents manufactured by the respondents or not. On the facts of this case, therefore, the third proviso toSection 36(2)was not applicable. If the respondents' view were to be accepted, the second proviso toSection 36(2)which laid the normal time limit of one year for issue of Revision Show Cause Notice would become redundant. The facts in the R.M.D.C. Press (P) Ltd case cited by the respondents [1987 (29) E.LT. 957 (Tribunal) Collector of Central Excise, Bombay v. .RMD.C. Press (P) Ltd. were different and the ratio of the R.M.D.C. judgment is not applicable to the facts of the present case.5. The only other plea of the respondents is that underSection 35-Pof the Act, the proceedings pending before the Central Govt. on 11.10.1982 alone were to be transferred to this Tribunal. Proceedings initiated with the Revision Show Cause Notice issued by the Central Govt. themselves could not be said to be proceedings pending before the Central Govt.; they were proceedings pending with the Central Government, hence ought not to have been transferred to this Tribunal, contended the respondents. We find no substance in this argument. Respondents themselves do not dispute that as on 11.10.1982 proceedings were pending with the Central Govt., they involve a question evaluation of goods for purpose of assessment of duty and these proceedings were to be decided by the Government. On and from 11.10.1932 this Tribunal came into existence and the Central Government lost its jurisdiction to decide any matter involving any dispute relating to valuation of the goods for purposes of assessment of Central Excise duty. That Jurisdiction was transferred to this Tribunal. The proceedings pending with the Central Govt. or before the Central Govt. were, therefore, validly transferred to this Tribunal.6. Since admittedly the Respondents had no agreement or arrangement with their buyers return of the cartons, the tentative view taken in the Revision Show Cause Notice has to be upheld. Accordingly, we allow the appeal of the department, set aside the impugned order of the Appellate Collector and maintain rejection of the refund claim of the respondents as ordered by the Assistant Collector.