Harish Chander, Member (J)

1. Aqueous Victuals Pvt. Ltd. has filed an appeal being aggrieved from order in appeal No. 378 -CE /KNP/85, dated 12.7.85 passed by Collector of CE. (Appeals), New Delhi. The appeal before the Collector (Appeals) was against order in original No. V/130/SRP/156/80/Pt. II, dated 18.2.84 despatched on 21.2.84. Collector (Appeals) had partly rejected the appeal and on certain issues had been remanded to the Assistant Collector for de novo adjudication. Thereafter, the Assistant Collector made de novo adjudication vide order dated 16-10-1985 and being aggrieved from the de novo adjudication order dated 16-10-1985, the assessee had failed an appeal to the Collector (Appeals) and the Ld. Collector (Appeals) had allowed the appeal vide order in appeal No. 12-CE/KNP/86, dated 24-2-1986. Being aggrieved from the aforesaid order the Collector of Central Excise, Kanpur has filed an appeal before the Tribunal. Since both the appeals pertain to the same period and the same appellant and order in original, the same are disposed of by this consolidated order.

2. M/s. Aqueous Victuals Pvt. Ltd. are manufacturer of aerated water falling under Tariff Item No. 1D of the Central Excise Tariff. During the period 1.11.81 to 28.2.83 the assessee had collected a sum of Rs. 18,36,158.12 through debit notes, the details of which are as follows:-

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The Assistant Collector of Central Excise, Bareilly issued show cause notice dated 1.5.82 intimating that inasmuch as value would be collected from the buyers as per declaration recorded on foot note of the price list, the same was to form part of the normal price as per Section 4(1)(a) and as such duty was chargeable on this value and called upon the assesses to show cause as to why the value collected from the so-called post-manufacturing expenses, be not included to form the assessable value. In reply to the show cause notice the appellant stated as follows:

(1) Expenses on account of transportation of excisable goods amounting to Rs. 6,17,654.89 during the period 1.11.81 to 31.10.82 and Rs. 34,377.40 during the period 1.11.82 to 28.2.83 should be deducted from the amounts collected on the debit notes because the equalised freight was also deductible to arrive at the assessable value in view of the Hon'ble Supreme Court judgment in the case of Union of India v. Bombay Tyres International;

(2) That the octroi paid at Rs. 95,760.31 + 6052.84 shall be deducted because octroi was a tax levied by the Municipal Authorities and was deductible to arrive at the assessable value as per Section 4(4)(d)(ii);

(3) That higher charges of empty crates at the rate of Re. 1/- per crate was also deducted because these charges were in respect of bottles for aerated water which were of durable and returnable in nature and the cost of each crate was Rs. 55/- and could be used 25 to 30 times as the appellant collected Rs. 35/- per crate from the wholesale dealer towards the cost of the crates and Re.1/- per crate was rental charge each trip.

3. The Ld. Asstt. Collector had taken the view (i) that rental charge of Re. 1/- per trip was charged towards the actual breakage of bottle and the deduction of rental charges of the bottles was not therefore permissible in law in view of the fact that these charges were being charged on account of actual breakage of bottle and had ordered that these charges are to be included in the assessable value, (ii) He had allowed the deduction of octroi charges, (iii) However, regarding transport charges at Rs. 6,52,032.29, he had found that an amount of Rs. 89,746/- was paid by the manufacturer for transporting empty bottles from the places beyond the jurisdiction of the factory, Rs. 1705/- was paid transportation of concentrate and Rs. 1800/- for transportation of gas cylinders; and as such the sum of Rs. 92,651/- was not in respect of transportation of excisable goods viz. aerated water and the total expenditure after deducting Rs. 92,651/- comes to Rs. 5,59,381.29. The tr