Judgment

SABYASACHI MUKHARJI, J.:- These appeals under Section 35L (b) of the Central Excises & Salt Act, 1944 (hereinafter called the Act) are against the orders Nos. 450-452 of 1985 A dated 4th July, 1985, 473/184A and 474/84A both dated 21st June, 1984 passed by the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter referred to as the Tribunal).

2. The appellant is a division of Mc Dowell & Co. Ltd. It has its factory at, inter alia, Visakhapatnam. There it manufactures and sells fusel oil/Styrene Monomer falling under Tariff Item No. 68 of the 1st Schedule to the Act. The case of the appellant is that the said fusel oil is a completely manufactured article and after completion of its manufacture, it is stored in storage tanks, duly approved for this purpose. It is at this stage that the quantity of fusel oil/ Styrene Monomer manufactured, according to the appellant, is entered in the RG-1 Register maintained for goods manufactured by the appellant. It is also the case of the appellant that the said fusel oil/Styrene Monomer manufactured by it is sold in bulk and delivered to the customers at the appellants factory. The fusel oil/ Styrene Monomer is also capable of being supplied in road-tankers to customers. The appellant had filed its price-lists in respect of the same. In the said price-lists, which were duly approved by the Asstt. Collector, the appellant had shown the value of fusel oil/ Styrene Monomer at the rate at which those were sold in wholesale as "Naked Ex-Works and in bulk". According to the appellant, the manufacture of fusel oil is complete and it is the fully manufactured fusel oil/ Styrene Monomer which is stored in the storage tank.

3. On 2nd July, 1983, a notice in respect of a consignment was issued to show cause as to why value of the drums should not be included in the value of the goods. There the drums had been supplied by the buyer. Another show cause notice as to why value of the drums should not be included in the assessable value of the goods was issued to the appellant on the 5th April, 1983 pertaining to Gate Pass No. 773 whereunder the appellant had cleared 2.4 K1 of fusel oil in drums supplied by the buyer. Replies were duly filed to the said show cause notices by the appellant contending, inter alia, that as the drums were supplied by the buyer, value thereof could not be included in the assessable value. On the 11th August, 1983, two orders were passed by the Assistant Collector - one in relation to each of the aforesaid show cause notices. The Assistant Collector included the value of the drums in the assessable value of the said fusel oil/ Styrene Monomer. Appeals were filed by the assessee. The same were allowed by the Collector (Appeals). He held that the appellant had not collected any amount in excess of the amount indicated in the price-lists. Therefore, in addition to this amount, according to the Collector (Appeals), it was not open to the Asstt. Collector to inflate the assessable value without establishing the receipt of the additional consideration by the appellant apart from what had been shown in the invoice. There was a further appeal to the Tribunal. The Tribunal held that at the time of removal the goods were delivered from the factory in packed condition and the containers were not returnable by the buyer, therefore, the value had to be included in the assessable value. The Tribunal, therefore, accepted the revenues contention and restored the order of the Asstt. Collector. Aggrieved therefrom, the appellant has come up in these appeals to this Court.

4. On behalf of the appellant, Shri Salve contended that the Tribunal had failed to appreciate the admitted factual position that the fusel oil/ Styrene Monomer manufactured by the appellant is sold in bulk and is capable of bring so sold. Hence, according to the appellant, it is not necessary for the said fusel oil/ Styrene Monomer to be supplied to the customers in drums in the aforesaid situation. The Tribunal,