( 1. ) THIS petition and Misc. Petition No. 220 of 1975 have been filed by the petitioner challenging an order passed by the Assistant Collector, Central Excise and the Superintendent Central Excise respectively. As both these petitions involve common grounds the present order shall also govern the disposal of Misc. Petition No. 220 of 1975.

( 2. ) 1 he petitioner is a limited company incorporated under the Companies Act and they have a factory at Indore where they manufacture hydrogenated oil commonly known as vanaspati. The Vanaspati so manufactured is subject to duty payable under the Central Excise and Salt Act, 1944 (hereinafter referred to as "the Act" ). It is alleged by the petitioner that duty is charged at the rate prescribed under Item 13 of the First Schedule of the Act. It is further alleged that the goods the petitioners manufacture are packed and sold in metal containers which are durable in nature and are returnable to the petitioners.

( 3. ) BEFORE 1st March 1969 the Excise duty payable by the manufacturers of vegetable product under Item 13 was leviable by weight per quintal of the excisable goods. By Finance Act of 1969 which came into force on 1st March, 1969, Item 13 of the First Schedule was amended so that from that date the excisable duty leviable was made ad valorem. Metal containers are also subject to excise duty under Item 46 and this duty is also leviable ad valorem and this duty has been made chargeable for the first time with effect from 1st March, 1970.

( 4. ) UNDER Rule 173-A of the Rules framed under the Act, the Central Government has made the provision contained in Chapter VIIA of the aforesaid Rules applicable to vegetable factories. Under Rule 173-A the petitoners are required to file a price list of goods assessed ad valorem for the purpose of determination of value in accordance with Section 4 of the Act. According to the petitioners the value for the purpose of ad valorem duty must exclude the value of the container as well as the the cost of freight and according to the petitioners this is clear from the provisions contained in Section 2 (d) which defines "excisable goods" and Section 2 (f) which defines "manufacture". It is further alleged that Item of the First Schedule refers to "vegetable product" and it has been explained in this Item. It is therefore contended by the petitioners that in view of Section 3 which is the charging Section, and Section 4 which talks of price, the duty could only be charged on the price of vegetable product manufactured by the petitioners as it will exclude the freight and the value of the container. According to the petitioners, respondent No. 3 by his orders, dated 29th March, 1975 rejected the contention of the petitioners and refused to modify the price list. The petitioners therefore have filed the present petition.

( 5. ) IT was contended on behalf of the petitioners, that the excisable goods which fall within the description contained in Item 13 are chargeable with duty in accordance with Section 3 of the Act. For the purpose of ad valorem duty the value of the excisable goods has to be determined in accordance with the provisions contained in Section 4.

( 6. ) ACCORDING to learned counsel for the petitioners the goods that are chargeable under Item 13 are vegetable product commonly known as vanaspati and this does not mean vanaspati packed in the containers. He also contended that the duty is charged on the value at the time of its delivery from the manufacturers factory and thus, freight, if included in the price, cannot be considered to be the value of the excisable goods. He also contended that the definition of "manufacture" contained in Section 2 (f) clearly indicates that wherever the Legislature intended packing or tinning to be included in the process of manufacture they have clearly indicated it. Thus, in cases where it is not indicated it could not be said that putting the vegetable product in the containers is part of the manufac