S.V. Maruthi, Member (J)

1. These 11 appeals are disposed of by a common order as the issue involved is common to all the appeals.

2. The appellants manufacture Soaps, Detergents, Tooth pastes, Cosmetics & Toilet preparations. They filed price-lists No. 11/78,21/78, 22/78, 23/78,24/78,12/78 in all 11 price-lists. In the price-lists they claimed post-manufacturing expenses on the ground that the assessable value for the purpose of Section 4 should be on the basis of manufacturing cost and manufacturing profit. The Asstt. Collector rejected their claim for deduction of post manufacturing expenses. On appeal the Appellate Collector rejected their appeals, against which the present appeals are filed. Appeal No. 356/79 was filed as a revision before the Central Government which was transferred to this Tribunal on its constitution. Similarly, Appeal No. 199/82 was filed as revision before the Central Government which was transferred to this Tribunal on its constitution.

3. Mr. Lodha, counsel for the appellants submitted that the appeals should be remanded to the Asstt. Collector for consideration afresh of the eligibility of deduction in the light of the judgment of the Supreme Court in Bombay Tyre International (1983 (14) ELT 1896). He further submitted that one of the deductions relates to the includability or otherwise of the packing of the goods manufactured by the appellants. He submitted that the authorities below have not considered the includability or otherwise of the cost of packing in the assessable value. He further submitted that this Tribunal should lay down principles on the basis of which the cost of packing is to be excluded for the purpose of determining the assessable value in the light of various judgments of the Supreme Court namely, Bombay Tyre International - 1983 (14) ELT 1896); Geep Industrial Syndicate Ltd. v. UOI - MANU/SC/0009/1986 : 1987 (31) ELT 865 (SC) (Civil appeals No. 642-45 of 1982); CCE v. Godfrey Philips India Ltd. -MANU/SC/0036/1986 : 1985 (22) ELT 306 (SC); Hindustan Polymers v. CCE -MANU/SC/0298/1990 : 1989 (43) ELT 165 (S.C.); CCE v. Ponds India Ltd. -MANU/SC/0056/1990 : 1989 (44) ELT 185 (S.C.). The learned counsel pointed out that according to these decisions it is only the cost of packing which is necessary for selling the excisable goods in the wholesale market at the factory gate is includible in the assessable value. He explained at length the various judgments of the Supreme Court laying down the tests. In the light of the tests laid down by the Supreme Court he submitted that it is incumbent on the Asstt. Collector to inquire whether the 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 he arrives at the conclusion that such packing is necessary then it should be included otherwise it is to be excluded. He pointed out that it is not how the manufacturer sells the goods that is relevant for the purpose of including the cost of packing in the assessable value but whether the packing is necessary to put the goods in the wholesale market at the factory gate. His further submission is even in cases where goods are sold in the tertiary packing then all the packing need not be included. The focus should be whether the packing is necessary for putting excisable article in the condition in which it is generally sold in the wholesale market at the factory gate. Therefore, he submitted that after an inquiry if the Asstt. Collector arrives at the conclusion that the packing is for safe transport of goods then the Asstt. Collector has to exclude it. If the answer is that it is for the purpose of marketability then the cost of packing he has to include. Therefore, he requested that the appeal should be remanded with a direction to make an inquiry from this angle with regard to the includability of packing in the assessable value of excisable article.

4. Shri Ganu appearing for the department has no