S.H. Sheth, J.
1. The petitioners are manufacturing glass products. Within the meaning of Item 23A in the First Schedule to the Central Excises and Salt Act, 1944, they have been manufacturing sheet glass and plate glass and not other glassware or glass products. The petitioners in another factory of theirs have been manufacturing wooden containers for their glass products. The iron strappings are wrapped round the wooden boxes in which their glass products are packed. In regard to wooden containers, the petitioners applied on 21st May 1975 for licence in pursuance of item 68 in the First Schedule to the Central Excises and Salt Act, 1944. They were given the modified licence on 1st September 1975. The factory manufacturing glass products and the factory manufacturing wooden containers were segregated and it was only in pursuance of that segregation that the modified licence was granted to the petitioners.
2. In these two petitions, the questions which have been raised by the learned Advocate General on behalf of the petitioners are as follows:
(1) Whether the value of the wooden containers and strappings can be included in the assessable value of the petitioners' glass products which are an excisable goods.
(2) Whether the petitioners are entitled to claim deduction of trade discount from the assessable value of their glass products.
(3) Where excise duty can be levied on enhanced value of their glass product to which where it is done, grinding process has been applied and in which holes have been bored.
3. The petitioners filed the price list on 29th October 1975. It was provisionally approved. The provisional order directed the inclusion of cost of packing in the assessable value of the petitioners' glass products. There was an appeal to the Appellate Collector who directed the Assistant Collector of Central Excise to either approve or disapprove finally the price list. That order was made on 30th March 1976. A revision application was filed before the Central Government on 19th September 1976 which-is still pending. On 11th October 1976, a fresh notice was issued to the petitioners by the Assistant Collector of Central Excise calling upon them to show cause in regard to matters specified therein. The petitioners replied to that notice. On 21st May 1977 the Assistant Collector of Central Excise made an order by which he directed that value of the cost of packing should be included in the assessable value .of the petitioners' glass products. It is that order which is challenged in these petitions.
4. On 16th August 1977, the petitioners filed an appeal against that order before the Collector of Central Excise on 10th May 1978. The Collector of Central Excise dismissed the appeal and confirmed the order made by the Assistant Collector. That appellate order is also challenged in these petitions. The petitioners have filed the revision application before the Central Government against the appellate order which is still pending.
5. It appears that for the period following 1st of October 1975, 12 such orders were made. They are collectively at Annexure 'G'. They are also challenged in these petitions.
6. So far as the wooden containers are concerned, indeed the petitioners have been manufacturing them. It appears that they have been paying excise duty on them under Item 68 in the First Schedule to the Central Excises and Salt Act, 1944. Wooden containers in which glass products are packed cannot form a part of the manufacturing process applied to the glass products. Therefore, they cannot enter into the manufacturing costs and manufacturing profits of the glass products.
CEN-CUS 1979/404D In Cibatul Limited v. Union of India and Ors. 1979 E.L.T. (J. 407), it has been held by this Court this excise duty is leviable on the value of an excisable goods made up of manufacturing costs and manufacturing profits. Wooden containers in which glass products are packed can never form a part of the manufacturing process of glass products. Therefore, their Value cannot be included in the value of the glass products and upon such combined value, excise duty cannot be levied under Item 23-A in the First Schedule to the Central Excises and Salt Act, 1944.
CEN-CUS 1979/477D In Alembic Glass Industries Limited v. Union of India and Anr. 1979 E.L.T. (J. 444), we have expressed the view that a manufacturer who purchases wooden containers from the market and packs his glass products into them is not liable to pay under Item 23-A in the First Schedule to the. Central Excises and Salt Act, 1944, excise duty on the value of his glass products which includes the value of its wooden containers. He is liable to pay excise duty only on the value of glass products. In that decision, we have read down the definition of 'value' given in Section 4 so as to bring it in conformity with Entry 84 in the Union List.
We have expressed a similar view in Special Civil Application No, 787 of 1976 decided by us on 15th April 1980. It was a case of packing material in which- cigarettes were packed.
7. Applying the principles laid down by us in the aforesaid three decisions, we are of the opinion, that the value of wooden containers into which petitioners' glass products are packed, cannot' form a part of the value of their glass products. Therefore, the petitioners are not liable to pay excise duty under Item 23A on the value of their wooden containers. It does not make any difference whether wooden cases in such cases are purchased from the market or are manufactured by the manufacturer himself. In either case do not form a part Of manufacturing process applied to the glass products]. The first contention raised by the learned Advocate General is, therefore, upheld.
8. So far as iron strapping are concerned, .the petitioners indisputably purchase them from the market. By no stretch of imagination they can form a part of the manufacturing process of glass products. Therefore, their value also cannot be included in the value of the petitioners' glass products and the petitioners are not liable to pay excise duty on such value of glass products which includes the value of iron strappings, We may make it clear that, the view which we are expressing applies to strappings which are fixed around the wooden containers in which the petitioner/ glass products are packed.
9. So far as trade discount is concerned, the petitioners have pleaded that in order to attract greater market-ability to their products, they have been allowing trade discount to the extent of 15% on some of their products and 20% on some of their other products. It is the petitioners' case that they pass on this discount to their wholesale purchasers. It appears to us from the impugned orders that trade discount is passed on by the petitioners to their branches and depots only. It has also been observed by the appellate authority in its impugned orders that it is not passed on to the wholesale purchasers of the petitioners' products. Out of abundant caution, we observe that if the petitioners allow trade discount to their wholesale buyers (not their branch offices or depots), then the petitioners are entitled to the deduction of trade discount from the value of their products because it is the actual value of such products which reflects the manufacturing costs and manufacturing profits of the petitioners. However, the petitioners shall not be entitled to claim deduction from the value of their glass products if they allow trade discount to their branches and depots and do not it on to their wholesaler-purchasers.
In that behalf, we may refer to Section 4 (4) (d) of the Central Excises and Salt Act, 1944, which, inter alia, provides as follows:
'value' in relation to any excisable goods.
(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 whatsoever) allowed in accordance with the normal practice of the wholesale trade at the time of removal in respect of such goods sold or contracted for sale.
10. We, therefore, find an express statutory provision which excludes trade discount from the assessable value of an excisable goods if trade discount is allowed by a manufacturer to his wholesale buyers. However, if such a trade discount is allowed by a manufacturer to his branches or depots and if it is not passed on to his wholesale buyers, it would be a mere subterfuge adopted with the object of reducing the liability of paying excise duty. Such discount, therefore, will not be entitled to be deducted from the assessable value of the excisable goods.
11. The next argument which the learned Advocate General has raised relates to grinding barges, hole charges and branding charges. Charges recovered by the petitioners for branding packing material can by no stretch of imagination form a part of the value of the excisable goods. Such branding has nothing to do with th manufacturing process of the excisable goods. Therefore, charges recovered by the petitioners for branding the packing material must be excluded from the assessable value of the excisable goods. It is necessary in this behalf to observe that if glass products themselves are branded, then branding charges will form a part of the assessable value of the glass products and the petitioners would be liable to pay excise duty on such higher value.
12. We then turn to grinding charges and hole charges. Grinding process is applied to sheet glass in order to round up its corners/edges so as to ensure its smooth use. It is the petitioners' case that grinding process is not applied to all its products. It is applied only when a purchaser demands it to be done. Similarly, charges for boring holes in glass sheet are also recovered when a wholesale purchaser requires the petitioners to bore holes in glass sheets. The learned Advocate General who appears on behalf of the petitioners has very strenuously contended that grinding and hole making do not form a part of the manufacturing process of sheet glass nor are they incidental and ancillary to the manufacturing process as contemplated by Section 2 (f) of the Central Excises and Salt Act, 1944. We are not impressed by the argument which the learned Advocate General has raised before us. So far as such glass sheets are concerned, they become marketable to their customers only after they have been ground or only after holes have been bored in them. It does not matter whether a particular manufacturing process has been applied in the same transaction in which glass is manufactured or it is applied afterwards. The glass sheets to which grinding process is applied or in which holes are bored become ready and marketable for the purpose of central excise only after those processes have been applied to them. The final product which becomes taxable under the Central Excises and Salt Act, 1944, comes into existence in such a case only after the grinding process or the hole making process has been applied. Until then, it remains incomplete in those cases. It is true that the petitioners will have to show separate prices for the glass sheets to which grinding and hole making processes have not been applied and to those to which they have been applied. Merely because a glass sheet to which no grinding or hole making process is applied is otherwise marketable, it does not mean that the application of grinding and hole making processes do not form a part of manufacturing activity of those glass sheets to which they have been applied. They form a part manufacturing process of those glass sheets to which they have been applied. Their marketability depends upon the application of those process. In our opinion, therefore, the Central Excise authorities were justified in including in the assessable value of the petitioners' glass products charges recovered by them from their wholesale buyers for having applied grinding and hole making processes.
13. In the result, the impugned orders cannot be sustained. Central Excise authorities will have to reassess the value of the petitioners' excisable goods in light of the principles which we have laid down in this judgment. The petitions partly succeed. The impugned orders are quashed and rule is made absolute in each of the two petitions to the aforesaid extent with costs. So far as deduction of trade discount is concerned, we may observe that there shall be no obligation upon the Central Excise authorities to reopen those cases in which it has been finally held by them that the petitioners have not allowed trade discount to their wholesale buyers but have allowed it only to their branches and depots.
14. Mr. S.N. Shelat who appears on behalf of respondents Nos. 1 and 2 applies for a certificate of fitness under Article 133 (1) of the Constitution of India to appeal against this decision to the Supreme Court; In the case of Alembic Glass Industries Limited (supra), we have granted the certificate. The principles laid down in that case have been applied by us to this case. Therefore, we grant certificate of fitness under Article 133(1) to the respondents to appeal against this decision to the Supreme Court.