Holding

The cost of drums supplied by the buyer, not incurred by the manufacturer, is excluded from the assessable value of the excisable goods.

Summary

Hindustan Polymers, a manufacturer of fusel oil and styrene monomer, sold most of its product in bulk via tankers, but occasionally delivered it in drums that were supplied by the buyers at no charge. The Revenue issued show‑cause notices demanding that the value of these drums be added to the assessable value of the goods under Section 4(4)(d)(i) of the Central Excises & Salt Act, 1944. The Assistant Collector included the drum value, the Collector (Appeals) set aside that order, but the Excise Tribunal reinstated it, holding that the goods were delivered in packed condition. The Supreme Court examined the statutory language, the definition of "manufacture" and the meaning of "cost of packing". It held that only packing costs incurred by the manufacturer and recovered from the buyer can be added to assessable value; drums supplied by the buyer at no cost are excluded. Consequently, the appeals were allowed and the Tribunal’s orders were set aside.

Issues considered

The cost of drums supplied by the buyer, for which the appellant was not charged, should be included in the assessable value of fusel oil/styrene monomer under Section 4(4)(d)(i).
Whether such drums constitute "incidental or ancillary" packing necessary for manufacture and thus fall within the statutory definition of assessable value.
The proper interpretation of the term "cost of packing" in Section 4(4)(d)(i) – does it include costs incurred by the buyer?
Whether the fact that the goods are delivered in packed condition mandates inclusion of packing cost.
Whether the proportion of sales made in drums versus tankers affects the determination of assessable value.

Legislation cited

Central Excises and Salt Act, 1944s. 2(f), s. 3, s. 35(1)(b), s. 4(4)(b), s. 4(4)(d)(i)

Subjects

excise dutyassessable valuepacking costCentral Excise Actdrumsfusel oilstyrene monomerstatutory interpretationmanufactureancillary costs

Judgment

A
HINDUSTAN POLYMERS ETC. ETC. A•
v.
COLLECTOR OF CENTRAL EXCISE, ETC. ETC.

AUGUST 23, 1989

B [SABYASACHI MUKHARJI, S. RANGANATHAN AND ~
J.S. VERMA, JJ.]
t
Central Excises and Salt Act, 1944: Sections 2(f}, 3, 4(4}(d),
35(L)(b) & First Schedule Tariff Item No. 68-Fusel oil/Styrene
Monomer-Drums supplied by buyer-Value of drums-Whether to be
excluded from 'assessable value'. l
--
c
The appellant company /assessee manufactures and sells fusel oil/ -{,
styrene Monomer falling under Tariff Item No. 68 of the 1st Schedule to
the Central Excises and Salt Act, 1944. The said fusel oil/styrene
Monomer is sold in bulk and generally delivered to the customers at the
D appellant's factory in road tankers. Some times it is supplied in drums
brought by the rnstomers who are not charged anything for those
drums. In the case of Styrene Monomer, the finding is that the supply
was in tankers to the extent of 90% and only 10% of the sales were made
in drums.
j
E Two notices were issued to the appellant to show cause as to why
the value of the drums should not be included in the assessable value of
the goods. In reply, the appellant contended that as the drums were
supplied by the buyer the value thereof could not be included in the
.
assessable value. The Assistant Collector however included the value of
the drums in the assessable value of the said fusel oil/Styrene Monomer.
F The Collector (Appeals) allowed the appellant's appeal and held that it -~
was not open to the Assistant Collector to inflate the assessable value
withont establishing the receipt of the additional consideration by the
appellant apart from what had been shown in the invoice. The Customs,
Excise and Gold (Control) Appellate Tribunal allowed the further
appeal filed by the Revenue and held that at the time of removal the
G 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. ~

Before this Court it was contended on behalf of the appellant that
it was not all packing that was liable to be included under s. 4(4)(d)(i) of
H the Cnstoms and Central Excises Act, it was only that degree of secon-
974
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. 975

}. dary packing which was necessary for the assessable article to be placed
in the condition in which it was sold in the wholesale market at the A
factory. gate which could be included in the assessable value of the
article; fusel oil/Styrene Monomer was sold in bulk and was capable of
being so sold, hence it was not necessary for the said fuse! oil/Styrene
Monomer to he supplied to the customer in drums; the dnty of excise
~ was payable on manufactured goods and no duty of excise could be B
collected from the appellant on such drums which were neither
manufactured nor purchased by the appellant; the duty being on the
activity of ma.mfacture whatever was necessary to bring the goods into
-· existence alone could be taken into account for duty purposes; and the
~, sub-section did not contemplate the inclusion of the cost of packing in
· the value of goods when the packing was supplied by a customer to a
f manufcturer on its own cost. c
On behalf of the Revenue the learned Attorney General contended
that the value of drums/containers would also have to be included on a
correct interpretation of charging sections, namely, sections 3 and 4 of
the Act; the terms of section 4(4)(d)(i) were very clear and specific; it D
was a well settled principle of construction that in taxing statutes one
had only to look at what was clearly stated, and there was no room for
any intendment; percentages of sales did not in any manner affect
·--'.._ determination of the assessable value of the excisable goods; though
"manufacture" was the taxable event, the measure of the levy Dlf...~d not
be and was not to be restricted to the cost of manufacture; it is open to E

- Parliament to prescribe any measure by reference to which the charge
was to be levied and this is what was done under section 4; and in
construing s. 4(4)(d)(i). all that had to be seen was whether the goods
were delivered in packed conditions and if this question was answerable
in the affirmative, then, in respect of the goods so sold, the cost of
J packing, whether incurred by the manufacturer or by the supplier, had F
to be automatically included in the assessable value, if necessary, by
addition to the sale price, except only where the packing was of durable
nature and returnable to the manufacturer.

Allowing the appeals, this Court,
G
HELD: (1) The correct position must be found out bearing in
).. mind the essential nature of excise duty. Excise duty is a duty on the act
of manufacture. Manufacture under the excise la\\' is the process of'
activity which brings into being articles which are known in the market
as goods and to be goods these must be different, identifiable and dis-
tinct articles known to the market as such. It is then and then only that H
'-
976 SUPREME COURT REPORTS [1989] 3 S.C.R.

manufacture takes place attracting duty. [9868] l
A
(2) Section 2(f) of the Central Excises & Salt Act provides the
definition of the term "manufacture". It states, inter alia, that
manufacture includes any process incidental or ancillary to the comple·
lion of manufactured product. In the instant case, the drums even
B though these were ancillary or incidental to the supply of fuse! oil and ),-
styrene monomer, these were not necessary to complete the manufac-
ture offusel oil or styrene monomer. [983B-C, 9870]

(3) In order to be 'manufacture', there must be activity which
brings transformation to the article in such a manner that different and
distinct article comes into being which is known as such in the market. I
-
c ·If in order to be able to put it on the market, a certain amount of
packing or user of containers or wrappers or putting them either ·'\
in drums or containers, are required, then the value or the cost
of such wrapper or container or drum must be included in the asses- (

sable value and if the price at which the goods are sold does not
D include that value then it must be so included by the very force
of the terms of the section. [986C-E]

(4) The clear implication of the use of the word "cost" in relation
to packing in the clause (i) of section 4(4)(d) of the Act is that only .>--
packing cost of which is incurred by the assessee, i.e. the seller, is
E to be included. The use of the expression "cost" could not obviously
be by way of reference to packing for which the cost is incurred by the
buyer. [988B]

Union of India & Ors. v. Bombay Tyre International Ltd., [1984]
1 SCR 347; Collector of Central Excise v. Indian Oxygen Ltd., [1986]
F 36 ELT 730; K. Radha Krishaiah v. Inspector of Central Excise, Gooty ~
& Ors., [1987] 27 ELT 598; Govind Pay Oxygen Ltd. v. Asstt. Col-
lector of Central Excise, Panaji & Ors., [1986] 23 ELT 394; Alembic
Glass Industries Ltd. v. Union of India & Ors., [1986] 24 ELT 23; Gur
Sahai Sehgal v. Commissioner of Income Tax, Punjab, [1963] 3 SCR
893; A.K. Roy v. Valtas Ltd., [1973] 2 SCR 1088; Atic Industries Ltd.
G v. H.H. Dave Assistant Collector of Central Excise, [1975[ 3 SCR 583;
Union of India v. Godfrey Phillips India Ltd., [1985] Supp. 3 SCR 123;
Union of India v. Delhi Cloth & General Mills Ltd., [1963] Supp. 1
SCR 586; South Bihar Sugar Mills Ltd., etc. v. Union of India & Ors., '°"·
[ 1968] 3 SCR 21; Bhor Industries Ltd., Bombay v. Collector of Central
Excise, Bombay, [1989] 1 SCC 602 and Union of India v. Godfrey
H Phi/Ups Ltd., [1985] 3 SCC ~9, referred to.
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. 977

(5) On the facts of this case, it is clear that the goods were not sold
A
in drums generally in the course of the wholesale trade. There was no
evidence that there was any necessity of packing or putting these in
drums prior to their sale, or to be able to generally to enter the stream
of wholesale trade or to be marketable. On the other hand, there was
evidence that in the wholesale trade, these goods were delivered directly
in tankers and deliverable as such. But as a matter of fact, delivery in B
drums was only to fadlitate their tran~port in small quantities. The
manufacture of the goods was complete before these were placed in
drums. The completely manufactured product was stored in tanks.
From these tanks the goods were r~moved directly and placed in
vehicles for their movement for 90% of the sales, the vehicle of removal
was tankers and for 10% of toe sales, the vehicle or removal was drums.
In the premises, the value of the drums with regard to the fuse! oil/ c
styrene monomer irrespective of whether these were supplied by the
assessee or not. are not includible in the assessable value of the Styrene
Monomer. [992A-D]

Per S. Ranganathan, J. (agreeing with the conclusion but resting D
it entirely on the language of section 4(4)(d)(i) of the Central Excises &
Salt Act)

(l) There is ample internal indication in the statute to show that
the cost of packing referred to ins. 4(4)(d)(i) of the Central Excises &
Sait Act, 1944 is the cost of packing incurred by the manufacturer and E

-
recovered by him from the purchaser whether as part of the said price
or separately. [994D]

(2) While generally the normal price for which the goods are sold
at fbe factory gate is to lie taken as assessable value, an addition thereto
has to be made where, in addition to the price, the manufacturer levies F
a charge for the packing which is intrinsically and inevitably incidental
to placing the manufactured goods on the market. [994F]

(3) The answer to the question whether the cost of the container
should be included in the assessable value or not would depend upon
whether the goods in question are supplied in a packed condition or not. G
If the answer is yes, three kinds of situation may arise. Where the
manufacturer supplies his own container or drum but does not charge
the customer therefor, then the price of the goods will also include the
cost of the container. There will be no question of separate addition to
the sale price nor can the assessee claim a deduction of the cost of
packing l'tilm the sate price except where the container is a durable one H
978 SUPREME COURT REPORTS [1989] 3 S.C.R.

A and is returnable to the manufacturer. If the manufacturer supplies the
drums and charges the customer separately therefor, then, under sec-
tion 4(4)(d)(i), the cost of the drums to the buyer has to be added to the
price except where the packing is of durable nature and is to be
returned to the manufacturer. If on the other hand, the manufacturer
asks the customer to bring his own container and does not charge any-
B thing therefor then the cost (or value) of the packing cannot be "notion-
ally" added to, or subtracted from, the price at which. the goods have
been sold by the manufacturer. [995B-D]

Per J.S. Verma, J. (agreeing with Ranganathan, J. that the con-
clusion reached on the language of section 4(4)(d)(i) of the Act is suffi-
C dent to allow these appeals).

(1) The cost of packing envisaged in section 4(4l(d)(i) of the Act for
determining the "value" in relation to any excisable goods is only the
"cost of such packing" incurred by the manufacturer and recovered
from the buyer except where the packing is of a durable nature and is
D returnable by the buyer to the manufacturer. [995G]

(2) The "cost of such packing" referred to in section 4(4)(d)(i)
does not include within its ambit the cost of packing not incurred by the
manufacturer when the packing is supplied by the buyer and not the
manufacturer. [995Hj
E
CJVIL APPELLATE JURISDICTION: Civil Appeal Nos.
4339-41/86 & 4176-77 of 1984.

From the Judgment and Order dated 4.7.85 & 21.6.84 of the
Cus!oms Excise and Gold (Control) Appellate TN~nal, New Delhi in
F Appeal Nos. ED(SB)(T) A. Nos. 513-514, & 544 of 1985(A) &
ED(SB) 329 & 324/84-A in Order Nos. 450-452/85-A, 473 & 474/84-A.

Harish Salve, Ravinder Narain, P.K. Ram and D.N. Mishra for
the Appellant.

G K. Parasaran, Attorney General, A.K. Ganguli, and P.
Parmeshwaran for the Respondents.

The Judgment of the Court was delivered by

SABYASACHI MUKHARJI, J. These appeals under Section
H 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.]979

> Act') are against the order Nos. 450-452 of 1985A dated 4th July,
1985, 473/184A and 474/84A both dated 21st June, 1984 passed by the
A
Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter
referred to as 'the Tribunal').

The appellant is a division of McDo.well & Co. Ltd. It has its
' factory at, inter alia, Visakhapatnam. There it manufactures and sells B
-'\ fuse! 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 fuse] oil
is a completely manufactured article and after completion of its

- "r-~
manufacture, it is stored in storage tanks duly approved for this
purpose. It is at this stage that the quantity of fuse! oil/Styrene
Monomer manufactured, according to the appellant, is entered in the
RG-1 Register maintained for goods manufactured by the appellant. It
c
> is also the case of the appellant that the said fuse] oil/Styrene
Monomer manufactured by it is sold in bulk and delivered to the
~,

customers at the appellant's factory. The fuse! 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 D
price-lists, which were duly approved by the Asstt. Collector, the
appellant had shown the value of fuse! oil/Styrene Monomer at the
rate at which those were sold in wholesale as "naked Ex-Works and in
(
·-1_ bulk". According to the appellant, the manufacture of fuse! oil is
complete and it is the fully manufactured fuse! oil/Styrene Monomer
which is stored in the storage tank. E

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
'1 should not be included in the assessable value of the goods, was issued F
to the appellant on the 5th April, 1983 pertaining to Gate Pass No. 773
whereunder the appellant had cleared 2.4 Kl of fuse! 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 G
the Assistant Collector-one in relation to each of the aforesaid show
f cause notices. The Assistant Collector included the value of the drums
c in the assessable value of the said fuse! 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 H
980 SUPREME COURT REPORTS [1989] 3 s,c.R.

to this amount, according to the Collector (Appeals), it was not open
A
to the Asstt. Collector to inflate the assessable value without establish-
~
ing 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
B containers were not returnable by the buyer, therefore, the value had ~
to be included in the assessable value. The Tribunal, therefore,
accepted the revenue's contention and restored the order of the Asst.
Collector. Aggrieved therefrom, the appellant has come up in these
appeals to this Court.
""
~
On behalf of the appellant, Shri Salve contended that the Tri-
c bunal had failed to appreciate the admitted factual position that the
fuse! oil/Styrene Monomer manufactured by the appellant is sold in ~
bulk and is capable of being so sold. Hence, according to the appel-
lant, it is not necessary for the said fuse! oil/Styrene Monomer to be
supplied to the customers in drums in the aforesaid situation. The
D Tribunal, therefore, it was urged, ought to have held that the value
could not be included in the assessable value of the fuse] oil/Styrene
Monomer. It was contended that in any event under the Act and the
Rules, the duty of excise is payable by the manufacturer on the
manufactured goods. The appellant was not a manufacturer of drums.
The said drums were supplied by the customers for the purpose of r
E filling the fuse I oil/Styrene Monomer. No duty of excise, therefore,
could be collected from the appellant on such drums which were
neither manufactured nor purchased by the appellant. It was further
urged that on a correct and true interpretation of Section 4( 4)(d)(i) of
the Act, the cost of packing could be included in the assessable value
only when the packing is either manufactured by the assessee or is
F purchased by the assessee. The said sub-section does not contemplate,
according to the appellant, the inclusion of the cost of packing in the
value of goods when the packing is supplied by a customer to a
manufacturer on its own cost .
•
It was contended by Shri Salve, appearing on behalf of the appel-
G lant, that on a correct analysis of section 4(4)(d), the duty being on
the activity of manufacture whatever is necessary to bring the goods
into existence alone can be taken into account for duty purposes. ....
Reliance was placed by Shri Salve as well as by the learned Attorney
General, appearing on behalf of the revenue, on the relevant provi- '
sions of the Act and the position as explained by this Court in Union of
H India & Ors. v. Bombay Tyre International Ltd., [1984] 1SCR347.
:,>.

HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.]981

Shri Salve has, however, contended that so far as this Court is
A
concerned, this question is concluded by the decision of this Court in
Collector of Central Excise v. Indian Oxygen Ltd., (1986] 36 ELT 730.
Learned Attorney General, however, contended that this decision did
not deal with the present controversy. The said decision, acccirding to
learned Attorney General, was concerned with the rentals of certain
oxygen gas cylinders supplied by the assessee. Reference was made to B
the decision of this Court in K. Radha Krishaiah v. Inspector of Central
Excise, Gooty & Ors., (1987] 27 ELT 598. Sbri Salve referred to and
relied on the decision of the High Court of Bombay in the case of
Gov ind Pay Oxygen Ltd. v. Asstt. Collector of Central Excise, Panaji
& Ors., (1986] 23 ELT 394 as also the decision of the Karnataka High
Court in Alembic Glass Industries Ltd. v. Union of India & Ors.,
I 1986] 24 ELT 23. Learned Attorney General urged before us that the c
question whether for determining the assessable value of the excisable
goods sold by the assessee in drums or containers provided by its
customers (the assessee itself provided such drums/containers on pay-
ment of price in Civil Appeals Nos. 4339-41 of 1986) the value of such
drums/containers would also have to be included on a correct interpre- 0
tation of charging sections, namely, sections 3 and 4 of the Act. It was
submitted that while determining the scope and nature of levy, as
contemplated under section 3 of the Act, of central excise and the
measure of such levy as provided in section 4 of the Act the principles
laid down in Uni9n of India v. Bombay Tyre International Ltd.,
(supra), should be followed and reliance was placed on the several
decisions of this Court which we will refer to later. Learned Attorney
General emphasised that it is a well settled principle of .construction
that in taxing statutes one has only to look merely at what is clearly
stated. There is no room, he contended, for any intendment. There is
no equity about a tax, it was submitted. There is no presumption as to
tax. Reliance was placed for this proposition by the learned Attorney F
General on the observ·ations of this Court in Gur Sahai Sehgal v. Com-
missioner of Income Tax, Punjab, (1963] 3 SCR 893 at 898.

Learned Attorney General also drew attention to the decision
of this Court in A.K. Roy v. Valtas Ltd.; (1973] 2 SCR 1088 and also to
Atic Industries Ltd. v. H.H. Dave, Assistant Collector .of Central G
Excise, [ 1975] 3 SCR 563 at 568 to emphasise the point that percentages
of sales do not in any manner affect determination of .the assessable
value of the excisable goods. In this connection, it may be relevant to
mention that in C.A. 4339-41186, in respect of which show notice was
issued as to why value of drums should not be included in the assess-
able value of fuse! oil and Styrene Monomer, 90% of Styrene Mono- H
982 SUPREME COURT REPORTS [1989] 3 S.C.R.
,l
mer had been sold directly in tanks and only 10% of Styrene Monomer
A
had been sold in drums and the show cause notice on 20th October,
1983 had been issued relating to clearance of fuse! oil in 45 drums but
the said drums had been supplied by the buyer. The Asstt. Collector in
those appeals had included the costs of such drums in the value of
styrene monomer. Relying on the two decisions referred to herein- '>--
B before, learned Attorney General emphasised that percentages of
sales would not in any manner affect determination of the assessable
value of the excisable goods. InA.K. Roy's case (supra), it was held by
this Court that though in that case that the fact that the assessee had
effected sales to wholesale dealers only to the extent of 5 to 10% of its ~·
production and that 90-95% of its production were only retail sales
would not affect the question of determination of the assessable value
c of the excisable goods with reference to its value in the wholesale
market. Therefore, the learned Attorney General submitted, the mere
"'
fact that the assessee in C.A. No. 4339 of 1986 sold only 10% of the
excisable goods to its buyer where drums were supplied by the buyers
themselves and that 90% of the sales were through tankers belonging
D to the customers would not in any manner affect the question or
determination of the assessable value of the excisable goods inasmuch
as the 10% of its sales to wholesale buyers were in drums supplied by
the buyers at the time of removal. According to the learned Attorney .'r
General, the fact that 90% of the goods were supplied in tankers and
not in containers had no relevance at all and the 10% represented the
E entire quantity of excisable goods delivered in packed condition.
Learned Attorney General contended that the decision of Indian Oxy-
gen Ltd. 's case (supra) cannot be relied on in view of the facts of this ""
case. In that case, the learned Attorney General contended the only
question which arose was whether the rental charges received by the
assessee for the gas cylinders lent by it to its customers could be
-t.·
F included in the assessable value and whether interest earned on
deposits made by the customers for the security of the cylinders sup-
plied by the assessee could also be included in the assessable value of
the excisable goods. This Court clarified in the said decision that the
said charges could not be included in the value of the goods since these
were only ancillary and not incidental to the activities for the
G manufacture of gases. Learned Attorney General submitted that this _...
Court had no occasion in that decision to consider the question which
arises in the present case, namely whether the cost of packing mate-
rials would have to be included in the assessable value of the goods
when goods are delivered in packed conditions. Learned Attorney
General submitted that the decisions of the Bombay and Karnataka
H High Courts were wrong as they are contrary to the decision of this
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.)983

Court in Bombay Tyre lmernational's case (supra). Reference was
A
made both by the learned Attorney General and Shri Salve to the
observations of this Court in Union of India v. Godfrey Phillips India
Ltd., [1985] Supp. 3 SCR 123.

In order to appreciate the controversy in this case, it is necessary
to refer to the relevant provisions. ' B

Section 2(f) of the Act provides the definition of the term

- "manufacture". It states, inter alia, that manufacture includes any
process incidental or ancillary to the completion of manufactured pro-
duct. It is, therefore, necessary to bear in mind that a process which is
ancillary or incidental \O t?e completion of the manufactured product, C
that is to say, to make the manufacture complete would be
"manufacture". It is relevant and important to bear this aspect in
mind. Section 3 of the Act provides that there shall be levied and
collected in such manner as maybe prescribed duties of excise on all
excisable goods other than salt which are produced or manufactured in
India. "Excisable goods", under section 2(d) of the Act, means goods D
specified in the Schedule to the Central Excise Tariff Act, 1985 as
being subject to duty of excise and includes salt. Section 4 of the Act
provides for the valuation of excisable goods for purposes of charging
of duty of excise. The relevant provision of section 4 of the Act deals
with the manner as to how the value is to be computed aud section

- 4( 4)( d) stipulates as follows:

" "value" in relation to any excisable goods,

(i) where the goods are delivered at the time of removal in
a packed condition, includes the cost of such packing
E

except the cost of the packing which is of a durable nature F
and is.returnable by the buyer to the assessee.

Explanation.-In this sub-clause "packing'' means the
wrapper, container, bobbin, pirn, spool, reel or warp beam
or any other thing in which or on which the excisable goods
are wrapped, contained or wound; G

(ii) does not include the amount of the duty of excise, sales
tax and other taxes, if any, payable on such goods and,
subject to such rules as may be made, the trade discount
(such discount not being refundable on any account what-
soever) allowed in accordance with the normal practice of H
984 SUPREME COURT REPORTS [1989] 3 S.C.R.
A
the wholesale trade at the time of removal in respect of
A
such goods sold or contracted for sale;

(Explanation.-For the purposes of this sub-clause, the
amount of the duty of excise payable on any excisable
goods shall be the sum total of- ~
B
(a) the effective duty of excise payable on such goods
under this Act; and

(b) the aggregate of the effective duties of excise payable ·-or
under other Central Acts, if any, providing for the levy of
puties of excise on such goods,-;- 1_
c
and the effective duty of excise on such goods under each
Act referred to in clause (a) or clause (b) shall be,

{i) in a case where a notification or order providing for any
D exemption (not being an exemption for giving credit with
,respect to, [or reduction or duty of excise under such Act
.on such goods equal to, any duty of excise under such Act,
or the additional duty under Section 3 of the Customs Tariff .,._
Act, 1975 (51 of 1975), already paid] on the raw material or
component parts used in the production or manufacture of
E such goods) from the duty of excise under such Act is for
the time being in force, the duty of excise computed with -
reference to the rate specified in such Act in respect of such
goods as reduced so as to give full and complete effect to
such exemption; and ~

f (ii) in any other case, the duty of excise computed with
reference to the rate specified in such Act in respect of such
goods."

The expression "place of removal" has been defined under sec-
tion 4( 4)(b) of the Act to mean a factory or any other place or premises
G of production or manufacture of the excisable goods; or a warehouse
or any other place or premises wherein the excisable goods have been ""
permitted to be deposited without payment of duty, from where such
goods are removed. It is in relation to Section 4(4)(d) that it is con-
tended that except the cost of packing which is of a durable nature and
is returnable by the buyer to the assessee to the buyer, in respect of all
H other costs of packing, the costs should be included in the value of the
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. (MUKHARJI, J.]985

excisable goods. The explanation to the said sub-section defines the
A
expression "packing" as the wrapper, container, bobbin, pirn, spool,
reel or warp beam or any other thing in which or on which the excis-
able goods are wrapped, contained or wound. The provisions of these
two sections must be judged in the light of the principles laid down by
this Court in Union of India v. Bombay Tyre International, (supra). In
that decision, it has been recognized that the measure employed for B
ussessing a tax must not be confused with the nature of the tax, while
the measure of the tax may be assessed by its own standard to serve as
a standard for assessing the levy the Legislature need not contonour it
along lines which spell out the character of the levy itself. Reliance
may be placed to the observations of this Court at pp. 365-367 of the
Report. This Court rejected the contention of the assessee in that case
that because the levy of excise is a levy on goods manufactured or c
produced, the value of an excisable article must be limited to the
manufacturing cost plus manufacturing profit. This Court reiterated
that section 4 of the Act provides the measure by reference to which
the charge is to be levied. Therefore, the charge is to be determined by
the terms of section 4 of the Act. But it has to be borne in mind that D
the duty of excise is chargeable with reference to the value of the
excisable goods and the value is defined in express terms in that sec-
tion. Though the learned Attorney General referred to the fact that in
taxing statutes, one must look merely at what is clearly stated, yet such
a construction must be made in the context of the entire scheme of the

- Act. Learned Attorney General emphasised that the language of
clause (d) of sub-section (4) of section 4 of the Act made.it clear
beyond doubt that in cases where the Act provides for excise duty with
reference to value of the excisable goods, while determining the value
of such goods, the cost of packing where the excisable goods are
delivered at the time of re1noval in packed condition, would have to be
E

included in the assessable value of the excisable goods. According to F
the learned Attorney General, since the Act provides for only one
exception to this measure, namely, non-inclusion of the cost of such
packing where the packing is durable in nature and is returnable by the
buyer to the assessee, in all other cases the cost of the packing would
have to be included in the assessable value of the excisable goods
where such goods are delivered at the time of removal in packed G
condition. According to him, the plain language of the Statute does
not permit of any further exceptions being read into the Act. To hold
otherwise, it was contended, would make the provision of the measure
of the levy unworkable inasmuch as in every case the measure would
have to differ in the light of the contentions as may be raised by the
assessees depending upon the business arrangement of-each assessee. H
986 SUPREME COURT REPORTS [1989] 3 S.C.R.
~
It was contended that it is not correct to equate the measure of tax with
A
the levy itself which is the basis of the contentions of the appellant.

In my opinion, however, the correct position must be found out
bearing in mind the essential nature of excise duty. Excise duty, as has
been reiterated and explained, is a duty on the act of manufacture. ).--
B Manufacture under the excise law, is the process or activity which
brings into being articles which are known in the market as goods and
to be goods these must be different, identifiable and distinct articles
known to the market as such. It is then and then only that manufacture
~
takes place attracting duty. In order to be goods, it was essential that I

as a result of the activity, goods must come into existence. For articles i
c tobe becapable
goods, these must be known in the market as such and these llltllSt
of being sold or being sold in the market as such. See the 1-
observations of this Court in Union of India v. Delhi Cloth & General
Mills Ltd., [1963] Supp. 1SCR586; South Bihar Sugar Mills Ltd., etc.
v. Union of India & Ors., [ 1968] 3 SCR 21 and Bhor Industries Ltd.,
Bombay v. Collector of Central Excise, Bombay, [1989] 1 SCC 602. In
D order, therefore, to be manufacture, there must be activity which
brings transformation to the article in such a manner that different and
distinct article comes into being which is known as such in the market.
If in order to be able to put it on the market, a certain amount of
packing or user of containers or wrappers or putting them either in
'r
drums or containers, are required, then the value or the cost of such
E wrapper or container or drum must be included in the assessable value
and if the price at which the goods are sold does not include that value
then it must be so included by the very force of the terms of the
Section. The question, therefore, that has to be examined in this case
is whether these drums, containers or packing, by whatever name they
-
are called, are necessary to make fuse! oil or styrene monomer market- ~
F able as such or can these goods be sold without the containers or drums
or packing? In my opinion, the facts established ti)at these could be.
The fact that 90% of the goods in C.A. No. 4339 of 1986 were
delivered in tankers belonging to the assessee and only 10% of the
goods were in packed condition at the time of removal clearly establish
that the goods were marketable without being packed or contained in
G drums or containers. These were in the storage tanks of the assessee
and were as such marketable. In this connection, it is necessary to ,...
refer to the observations of this Court in Collector of Central Excise v.
Indian Oxygen Ltd., (supra). In that case, as mentioned hereinbefore,
the respondent Indian Oxygen Ltd. was manufacturer of dissolved
acetylene gas and compressed oxygen gas, called therein 'the gases'.
H The respondent supplied these gases in cylinders at their factory gate.
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.]987

For taking delivery of these gases, some consumers/customers used to
bring their own cylinders and take the delivery, while others used to A
have the delivery in the cylinders supplied by the respondent. For the
purpose of such supply of cylinders, certain rentals were charged by
the respondent and also to ensure that these cylinders were returned
properly, certain amounts of deposit ' used to be taken from the
customers. On these deposits, notional interest @ 18% p.a. was B
calculated. The two amounts with which this Court was concerned
were rentals of the cylinders and the notional interest earned on the

- deposit of cylinders-whether these two amounts were includible in
the value under s. 4 of the Act was the question. The revenue's case
was that the notional value of deposit was rental and hence should be
included in computing the assessable value. The respondent, however,
disputed this. Analysing the scope of s. 4 of the Act, it was held by this c
Court that supply of gas cylinders might be ancillary activity to the
supply of gases but this was not ancillary or incidental to the
manufacture of gases. The goods were manufactured without these
cylinders. Therefore, the rental of the same though income of ancillary
activity, was not the value incidental to the manufacture and could not D
be included in the assessable value. Similarly, in my opinion, drums
even though these were ancillary or incidental to the supply of fusel oil
and styrene monomer, these were not necessary to complete the
manufacture of fuse] oii or styrene monomer; the cost of such drums
cannot, therefore, be included in the assessable value thereof.
Furthermore, no cost was, in fact, incurred by the assessee. Drums had E

- been supplied by the buyers.

This position, in my opinion, was correctly approached in the
decision of the Bombay High Court in Govind Pay Oxygen Ltd. v.
Assistam Collector of Central Excise, Panaji & Ors., (supra), where it
was held that section 4(4)(d)(i) of the Act does not make any provision F
for including the cost of packing which was supplied by the buyer to
the assessee for the obvious reason that the assessee did not spend for
such packing. It was for this simple reason that the legislature had not
thought it fit to exempt such packing from the value of excisable goods.
In my opinion, that is the correct approach to the problem. Similarly,
Karnataka High Court in Alembic Glass Industries v. Union of India & G
Ors., (supra) held that the term "value" defined in section 4(4)(d)(i)
provides for exclusion of cost of packing material which was of durable
nature and was returnable by the buyer to the assessee. Hence, there
was no logic or reason for not excluding the value of packing material
supplied by the buyer himself which is of durable nature and is return-
able by the assessee to the buyer. Furthermore, in my opinion, in H
988 SUPREME COURT REPORTS [1989] 3 S.C.R.
,l
terms of section, it is not includible. The contention that the value of
A
packing materials including those supplied by the buyer, has to be
included in the value of the goods, is repugnant to the very scheme of
section 4. It overlooks the use of the expression "cost" in relation to
packing in the clause (i) of section 4(4)(d) of the Act. The word "cost"
has a definite connotation, and is used generally in contradistinction of 'r·
B the expression "value". Thus, the clear implication of the use of the
word "cost" is that only packing cost of which is incurred by the
assessce, i.e., the seller, is to be included. The use of the expression
"cost" could not obviously be by way of reference to packing for which
the cost is incurred by the buyer. It has to be borne in mind that such a
provision would make the provision really unworkable, since in mak- f
-
ing the assessment of the seller, there is no machinery for ascertaining
c the "cost" of the packing which might be supplied by the buyer. Such a ~
contention further overlooks the scheme of clause (i) whereunder dur-
able packing returnable by the buyer has to be excluded. It would
create an absurd situation if durable packing supplied by the assessee
and returnable to the assessee is not to be included in the assessable
D value but a durable packing supplied by the buyer to the assessee and
returnable to the buyer is made a part of the assessable value. One has
to bear in mind the scheme of clause (d) of section 4(4) of the Act. The
two sub-clauses of this clause deal with abatements or deductions in ·~
respect of actual burdens, either by way of an expenditure or discount,
borne by the assessee. Clause (ii) deals with duties of excise, sales tax

-
E and other taxes, if any, payable on such goods. Here also obviously,
the reference is not generally to the taxes payable on such goods by
either the assessee or the buyer but is obviously to the taxes payable by
the assessee. The trade discount is referable to that allowed by the
assessee. Therefore, in the same sense, clause (i) would only be refer-
able to the packing in respect to which "cost" is incurred by the asses- ·~
F see. It has to be borne in mind that the scheme of old section 4 of the
Act and new section 4 is the same as was held by this Court in the case
of Bombay Tyre International, (supra) at pages 376 E-F, 377-H and
378 A-B, H of the Report. The scheme of the old section 4 is indis-
putedly to determine the assessable value of the goods on the basis of
the price charged by the assessee, less certain abatements. There was
G no question of making any additions to the price charged by the asses-
see. The essential basis of the "assessable value" of old section 4 was
the wholesale cash price charged by the assessee. To construe new sec- '°"·
tion 4 as now suggested would amount to departing from this concept
and replacing it with the concept of a notional value comprising of the
wholesale cash price plus certain notional charges .. This would be a
H radical departure from old section 4 and cannot be said to be on the
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.1989

>. same basis. It has to be borne in mind that the measure of excise duty
A
is price and not value. It has been so held by this Court in Bombay
Tyre Jnternational's case (supra). See in this connection, the observa-
tions of this Court in Bombay Tyre's case at pages 368, 377, 379, 382 and
383, where this Court emphasised that in both the olds. 4 and the new
s. 4, the price charged by the manufacturer on a sale by him represents
i the measure. Price and sale are related concepts and price has a B
definite connotation. Therefore, .it was held that the "value" of the
excisable article has to be computed with reference to the price
charged by the manufacturer, .the computation being made in accor-

r/ dance with the terms of s. 4. This Court rejected the contention on
behalf of the assessee in that case, that s. 4 also levied excise on the
basis of a conceptual value which must exclude post-manufacturing
expenses and post manufacturing profit by observing that the conten-
tion proceeded on the assumption that a conceptual value governed
c

the assessment of the levy. It was reiterated that the olds. 4 and news.
4 determine the value on the basis of price charged or chargeable by
the particular assessee. See in this connection, the observations of this
Court at p. 388 F & G of the report. D

It has also to be borne in mind that in any event in so far as
I Styrene Monomer Oil is concerned, the.value of the drums in which it
...._
is packed is not includible in the assessable value of the goods. It is not
all packing which is liable to be included under clause 4(4)(d)(i) in the
assessable value of the goods. It is only that degree of .secondary E
packing which is necessary for assessable articles to be in the condition
in which it is generally sold in the wholesale market which can be
included at the factory gate which should be included in the value of
the article. See the ob.servations of this Court in Bombay Tyre Interna-

1 tional's case (supra) at page 393 D & E. In the case of Union of India v.
Godfrey Phillips-Ltd., [1985] 3 SCC 369, this position was clarified by F
the majority judgment. In that case, the respondent therein manufac-
tured cigarettes .in their factories. The cigarettes so manufactured were
packed initially in paper/cardboard packets of 10 and 20 and these
packets were then packed together in paper/cardboard cartons/outers.
These cartons/outers were then placed in corrugated fibreboard con-
tainers and delivered by the respondents to the wholesale dealers at G
the factory gate. There was no dispute that the cost of primary packing
~ into packets of 10 and 20 and the cost of secondary packing in cartons/
outers must be included in determining the value of the cigarettes for
the purpose of assessment of excise duty, since such packing would fall
under section 4(4)(d)(i) of the Act. The question that arose was
whether the cost of final packing in corrugated fib.reboard containers H
990 SUPREME COURT REPORTS [1989) 3 S.C.R.
...
would be liable to be included in the value of the cigarettes for the
A
purpose of assessment to excise duty. The question was answered in
negative by a majority of 2: 1 of this Court. Chief Justice Bhagwati
dissel)ted. It was held by Pathak, J. (as the learned Chief Justice then
was) that such cost of corrugated fibreboard containers could not be
included in the determination of "value" in section 4(4)(d)(i) of the ~
B Act for the purposes of excise duty. For the purpose of measure of levy
on cigarettes, the statute has given an extended meaning to the expres-
sion "value in section 4(4)(d) of the Act. Plainly, the extension must
be strictly construed, for what is being included in the value now is
something beyond the value of the manufactured commodity itself.
The corrugated fibreboard containers could be regarded as secondary 1
c packing. These were not necessary, it was emphasised by the majority
of the Judges, for selling the cigarettes in the wholesale market at the .~
factory gate. These were only employed, it was emphasised by the
majority of the Judges, for the purpose of avoiding damage or injury
during transit. It was perfectly conceivable that the wholesale dealer
who took delivery might have his depot at a very short distance only
D from the factory gate or might have such transport arrangements avail-
able that damage or injury to the cigarettes could be avoided. A.N.
Sen, J., who agreed with Pathak, J., observed that on a proper con-
struction of section 4(4)(d)(i), it was clear that any secondary packing
done for the purpose of facilitating transport and smooth transit of the
'r
goods to be delivered to the buyer in the wholesale trade could not be
E included in the value for the purpose of assessment of excise duty.
Chief Justice Bhagwati, on the other hand, held that corrugated
fibreboard containers in which the cigarettes were contained fell
within the definition of 'packing' in the Explanation to section
4(4)(d)(i) and if these formed part of the packing in which the goods
were packed when delivered at the time of removal, then under section f
F 4(4)(d)(i) read with the Explanation, the cost of such corrugated
fibreboard containers would be liable to be included in the value of
cigarettes. It is apparent from the wide language, according to the
learned Chief Justice, of Explanation to section 4(4)(d)(i) that every
kind of container in which it can be said that the excisable goods are
contained would be 'packing' within the meaning of the Explanation.
G Even secondary packing would be within the terms of the Explanation,
because such secondary packing would also constitute a wrapper or a -"
container in which the excisable goods are wrapped or contained. But
the test to determine whether the cost of any particular kind of secon-
dary packing is liable to be included in the value of the article is
whether a particular kind of packing is done in order to put the goods
H in the condition in which they are generally sold in the wholesale
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [MUKHARJI, J.]991

~ market at the factory gate. If they are generally sold in the wholesale
A
market at the factory gate in a certain packed condition, whatever may
be the reason for such packing; the cost of such packing would be
includible in the value of the goods for assessment to excise duty.
According to learned Chief Justice, it makes no difference to the
applicability of the definition in section 4{4)(d){i) read with Explana-
1. tion that the packing of the goods ordinarily sold by the manufacturer B
in the wholesale trade is packing for the purpose of protecting the
goods against damage during transporiation or in the warehouse.
However, if any special secondary packing is provided by the assessee
~
at the instance of a wholesale buyer which is not generally provided as
'l" a normal feature of the wholesale trade, the cost of such special pack-
ing would not be includible in the value of the goods. It may be neces-
sary in. this connection to refer to the observations of this Court in c
) Union of India & Ors. v. Bombay Tyre. International Ltd., (supra)
dealing with the aspect of secondary packing, where this Court
reiterated that the degree of secondary packing which is necessary for
putting the excisable article in which it is sold in the wholesale market
at the factory was the degree.. of packing where the cost would be D
included in the value of the goods for the purpose of excise duty.
Pathak, J., as the Hon'ble Chief Justice was then, observed whether it
I is necessary for putting the cigarettes in the conditions in which they

' were sold in the wholesale market or at the factory gate. He answered
that it is not. It was found that these corrugated fibreboard containers
are employed for the purpose of avoiding damage or in jury during the E
transit. It was conceivable that the wholesale dealer who takes delivery
;"'· might have its depot at a very short distance only from the factory gate
or may have such transport arrangements available that damage or
injury to the cigarettes could be avoided. In those cases, the cor-
~- rugated fibreboard containers, according to Pathak, J., were not
necessary for selling the cigarettes in the wholesale market.
I F

I am of the opinion that the views expressed by the majority of
the learned Judges were correct and it appears, with respect, that the
observations of Chief Justice Bhagwati were not consistent with the
judgment of this Court in Bombay Tyre international (supra) at p. 379.
The learned Attorney General sought to suggest that the decision of G
;.. this Court in Union of India v. Godfrey Phillips Ltd. (supra) perhaps
might require reconsideration. I am unable to accept this suggestion.
The ratio of the decision in Godfrey Phillips' case (supra) is in con-
sonance with the decision of Union of India v. Bombay Tyre Interna-
tional (supra) and further in consonance with the true basis of excise as
explained in several decisions mentioned before. In the premises, on H
'
992 SUPREME COURT REPORTS [1989] 3 S.C.R.

A
the facts of this case, it is clear that the goods were not sold in drums ~-
generally in the course of the wholesale trade. There was evidenc~ that
90% of the goods were delivered at the time of removal without being
put in drums. There was no evidence that there was any necessity of
packing or putting these in drums prior to their sale. It was not neces-
sary that the articles were to be placed in drums for these to be able to
~
B generally to enter the stream of wholesale trade or to be marketable.
On the other hand, there was evidence that in the wholesale trade,
these goods were delivered directly in tankers and deliverable as such.
But as a matter of fact, delivery in drums was only to facilitate their
transport in small quantities. The manufacture of the goods was com-
plete before these were placed in drums. The completely manufac- -. '
lured product was stored in tanks. From these tanks the goods were
c removed directly and placed in vehicles for their movement-for 90% ~
of the sales, the vehicle ofremoval was tankers and 10% of the sales,
the yehicle of removals was drums. In the premises, the value of the
drums with regard to the fuse] oil/styrene monomer irrespective of
whether these were supplied by the assessee or not, are not includible
D in the assessable value of the Styrene Monomer.

In the aforesaid view of the matter, I am of the opinion that these
appeals have to be allowed and the orders of the Tribunal set aside.
The Tribunal was in error in holding that as at the time of removal, 'r-
goods were delivered from the factory in packed condition and the
E containers were not returnable to by the buyer, the value of the drums
is to be included. It is reiterated that in order to be deliverable, it is not
necessary that the goods should be delivered in packed condition and •
that the containers were not necessary to make the goods marketable.

In the aforesaid view of the matter, the appeals are allowed and ·~
F the orders of the Tribunal are set aside. The value of the aforesaid
drums should, therefore, be excluded from the assessable value for the
purpose of excise duty. In the facts and the circumstances, however,
there will be no order as to costs.

RANGANATHAN, J. I have perused the judgment proposed to
G be delivered by my learned brother Sabyasachi Mukharji, J. I agree
with the conclusion arrived at by him but I would like to rest it entirely
on the language of S. 4(4)(d)(i) of the Central Excises & Salt Act,
...
1944, without going into the larger questions raised by counsel and
dealt with by my learned brother.

H 2. The assessee company is manufacturing and selling fuse! oil.
HINDUSTAN POLYMERS v. COLLECTOR OF CE. [RANGANATHAN, .!.] 993

It also manufactures and sells anotl\er liquid known as styrene mono- A
mer. The fuse! oil and monomer are suppjied generally in tankers
brought by the customers. Sometimes it is supplied in drums provided
by th~ customers who are not charged anything for those drums. In the
case of styrene monomer, the finding is that the supply is in tankers to
the extent of 90% and only 10% of the sales wer~ made in dru~s. The
issue before us is wheth~r the cost of the drums supplied by the B
.customer for which he is not charged should be included in the assess-
able value of the goods in question: in other words, whether a notional
amount representing the cost of the drums should be added to the sale
price charged by the assessee to its constituents.

3. Shri Harish Salve, arguing for the appellants, contended that
the cost of packing referred io in S. 4(4)(d)(i) is such cost incurred by a C
manufacturer and not the cost of packing borne by the buyer. In the
alternativ~, he contended that, atleast so far as styrene monomer sales
ar~ ~oncerned, the cost of drums cannot enter into the picture. Citing
several previous authorities of this Court he contended on the follow-
ing lines: D

"It is not all packing that is liable to be included under s.
4(4)(d)(i). It is only that degree of secondary packing which
is necessary for the assessable article to be placed in the
condition in which it is sold in the wholesale market at the
factory gate which can be included in the assessable value E
of the article. On the facts of this case, there is evidence
that 90% of the monomer was delivered at the time of
removal without being put in drums. There was no evi-
dence that there was any necessity of packing or putting
them in drums prior to their sale. Delivery in drums was
only to facilitate their transport in small quantities. The f
manufacture of the monomer was complete when it was
stored in tanks. From these tanks, the goods were, to the
extent of 90%, removed directly and placed in tankers. In
10% of the sales, the "vehicle" of removal was drums. In
the premises, the value of the drums irrespective of
whether these where supplied by the assessee or not, is not G
includible in the assessable value of the goods."

3. The learned Attorney General, on the other hand, contended
that the terms of section 4(4)(d)(i) are very clear and specific. He
pointed out though "manufacture" is the taxable event, the measure
of the levy need not be and is not to be restricted to the cost of H
994 SUPREME COURT REPORTS [1989] 3 S.C.R.

manufacture. So it is open to Parliament to prescribe any measure by
A
reference to which the charge is to be levied and this is what is done
under s. 4. In construing S. 4( 4)(d)(i), all that has to be seen is whether
the goods are delivered in packed condition. If this question is ans-
wered in the affirmative, then, in respect of the goods so sold, the cost
of packing, whether incurred by the manufacturer or by the supplier,
B has to be automatically included in the assessable value if necessary,
by addition to the sale price, except only where the packing is of
durable nature and returnable to the manufacturer. He reminded us of
the oft-quoted truism that, in tax matters, one has to look at what is
said and that there is no question of any intendment, implication,
equity or liberality in construing the taxing provision. I agree with
J. that this contention cannot be accepted. The principle
c Mukharji,
referred to by the learned Attorney General is unexceptionable but
the words of a statute have to be read in the context and setting in
which they occur. The proper interpretation to be placed on the words
of S. 4(4)(d)(i) has been explained in the judgment of my learned
brother and I am in full agreement with him on this point. There is
D ample internal indication in the statute to show that the cost of packing
referred to in the above clause is the cost of packing incurred by the
manufacturer and recovered by him from the purchaser whether as
part of the sale price or separately. The object and purpose of the levy,
the meaning of the expression 'assessable value' as interpreted in the
section before its amendment coupled with the now well established
E position that the amendment intended to make no change in this posi-
tion, the use of the word "cost" rather than "value", the nature of the
other payments referred to in sub clause (ii)-all these show beyond
doubt that, while generally the normal price for which the goods are
sold at the factory gate is to be taken as the· assessable value, an
addition thereto has to be made where, in addition to the price, the
F manufacturer levies a charge for the packing which is intrinsically and
inevitably incidental to placing the manufactured goods on the
market. It will indeed be anomalous if the cost of an item of packing
charged for from the customer is to be excluded from the assessable
value where the packing, though durable, is returnable to the
manufacturer but the cost of an item of durable packing supplied by
G the customer and taken back by him is liable to be included in the
assessable value. This conclusion, in my opinion, is sufficient to dis-
pose of the present appeals.

4. In this view of the matter, I consider it unnecessary to discuss
wider questions as to the circumstances in which the cost of packing
H (primary or secondary) can at all enter into the determination of the
HINDUSTAN POLYMERS v. COLLECTOR OF C.E. [VERMA, l.] 995

assessable value under S. 4(4)(d)(i)-canvassed by the counsel for the
A
assessee-or as to the correctness or otherwise of the decision of this
Court in Union of India v. Godfrey Phillips, [1985] 3 SCC 369-
canvassed by the learned Attorney General. My conclusion is that the

• answer to the question whether the cost of the container should be
included in the assessable value or not would depend upon whether the
goods in question are supplied in a packed condition or not. If the B
answer is yes, three kinds of situation may arise. Where the
manufacturer supplies his own container or drum but does not charge
the customer therefor, then the price of the goods will also include the
cost of the container. There will be no question of separate addition to
the sale price nor can the assessee claim a deduction of the cost of
packing from the sale price except where the container is a durable one
and is returnable to the manufacturer. If the manufacturer supplies the c
drums and charges the customers separately therefor, then, under sec-
tion 4(4)(d)(i), the cost of the drums to the buyer has to be added to
the price except where the packing is of durable nature and is to be
returned to the manufacturer. If on the other hand, the manufacturer
asks the customer to bring his own container and does not charge D
anything therefor then the cost (or value) of the packing cannot be
"notionally" added to, or subtracted from, the price at which the
goods have been sold by the manufacturer.
·~.
VERMA, J. I have the benefit of perusing the judgments pre-
pared separately by my learned Brothers Mukharji, J. and Rangana- E
than, J. both of whom have arrived at the same conclusion. My conclu-
sion also is the same. However, I append this short note only to
emphasize that in my opinion also the view taken by all.of us on the
construction of section 4(4)(d)(i) of the Central Excises and Salt Act,
1944 (hereinafter referred to as "the Act") is alone sufficient, in the
present matters, to support the conclusion we have reached and it does F
not appear necessary to consider the wider propositions canvassed by
the iwo sides.

I agree that the cost of packing envisaged in section 4(4)(d)(i) of
the Act for determining the "value" in relation to any excisable goods
is only the "cost of such packing" incurred by the manufacturer and G
recovered from the buyer except where the packing is of a durable
nature and is returnable by the buyer to the manufacturer. The "cost
of such packing" referred in section 4(4)(d)(i) does not include within
its ambit the cost of packing not incurred by the manufacturer when
the packi!lg is supplied by the buyer and not the manufacturer. This
construction of the expression "cost . of such packing" in section H
996 SUPREME COURT REPORTS [1989] 3 S.C.R.

A 4( 4)( d)(i) of the Act clearly excludes in these matters the question of A
its addition to the price of goods recovered by the manufacturer from
the buyer for determining the "value" in relation to the excisable
goods for computing the duty payable on it.

In my opinion also, the above conclusioh reached on the
B
language of section 4(4)(d)(i) of the Act is sufficient to ·allow these
appeals. For this reason, I agree ·with Ranganathan, J. that the wider
propositions canvassed by the two sides including the question. of cor-
rectness of the view relating to secondary packing taken ·in Union of
India v. Godfrey Phillips India Ltd., [1985] 3 SCC 369 raised by the
learned Attorney General need not be considered and decided in these -.
C matters.
-
I agree with my learned Brothers that both these appeals be
allowed.

D R.S.S. Appeals allowed.