( 1 ) WE have heard the main appeal with Civil Application No. 391 of 1983. Since in our view the said civil application for adjournment of hearing of the appeal was nothing but an attempt to stall the hearing of this first appeal which was fixed for being heard on 24-1-1983 we have rejected the same by a separate order and detailed reasons thereof are recorded in the order passed therein.

( 2 ) SO far as the facts are concerned they are as follows:

( 3 ) THE respondent-Company (original Plaintiff) filed a suit being Special Suit No. 50 of 1980 against the Union of India and others (present appellants) in the Court of the Civil Judge Senior Division Jamnagar for recovery of an amount of Rs. 1 2 46 701. 52 paise on the ground that this amount represented excise duty which was illegally collected by the Excise Department from the plaintiff-company. The plaintiff-company has a factory at Mithapur in Jamnagar District and it manufactures Soda Ash. This commodity falls under Tariff Item No. 14-A in the First Schedule to the Central Excise and Salt Act 1944 (hereinafter referred to as the Act ). The case of the plaintiff was that excise duty was charged on the packing material. It was the contention that Section 4 of the Act was substituted by Section 2 of Act No. XXII of 1973 and it came into force from 1-10-1975. It provided that where under the said Act duty of excise is chargeable on any excisable goods with reference to value such value shall be subject to the provisions of that Section. We shall be considering this Section in extenso when we shall be discussing the merits. Section 4 Before amendment 4 Determination of value for the purposes of duty- Where under this Act any (1) article is chargeable with duty at a rate dependent on the value of the article such value shall be deemed to be the case of the plaintiff-company was that the excise duty on the packing material recovered by Government was not justified and therefore demand of refund of excise duty was made. The suit was decreed. The main ground for decreeing the suit was the consideration of the decisions of a Division Bench of this Court in Golden Tobacco Co. Ltd. v. Union of India 22 Gujarat Law Reporter 44 and in Alembic Glass Industries Ltd. v. Union of India 1979 Excise Law Times 444. This judgment and decree is challenged by the appellants by way of this appeal.

( 4 ) THE material ground for challenging the decree of the trial Court is on the strength of the Full Bench decision of this Court in Ahmedabad Manufacturing and Calico Printing Co. Ltd. v. Union of India 24 (1) Gujarat Law Reporter 1 = 1982 Excise Law Times 821 (Gujarat ). Therein the Full Bench took a decision that the cost of packing shall be included in the manufacture of goods which will be excisable.

( 5 ) THE dispute involved in this appeal is only about the excise duty on the packing material. The main dispute centres round the provisions of Section 4 of the Act. We would adopt the mode in which this Section 4 of the Act was considered by the Full Bench of this Court in Case of Calico Mills (iupra) by placing both the old as well as new sections in juxtaposition. They are as follows: After amendment which became effective as and from 1 October 19754. Valuation of excisable goods for purposes of charging of duty of excise.- (1) Where under this Act the duty of excise is chargeable on any excisable goods with reference to value such value shall subject to the other provisions of this Section be deemed to be (A) the wholesale cash price for which an article of the like kind and quality is sold or is capable of being sold at the time of the removal of the article chargeable with duty from the factory or any other premises of manufacture or production for delivery at the place of manufacture or production or if a wholesale market does not exist for such article at such place at the nearest place where such market exists or (B) there such price is not ascertainable the price at which