“9. As regards the question as to whether deduction of “packing and forwarding charges” is to be allowed, the packing and forwarding charges are mainly expenses incurred on packing of the goods sold from the depot. The appellant’s contention is that the goods manufactured by them - laminated sheets are normally sold without packing and only in some cases where the sales are to the outstation customers, the goods are packed in cartons on the instruction of the customers. The department’s contention on the other hand, is that the laminated sheets cannot be sold in the ordinary course of trade without packing and, therefore, the packing charges would be includable in the assessable value. The Apex Court in the case of U.O.I. v. Bombay Tyre International Ltd. (supra) on the question of inclusion of packing charges in the assessable value has held that the packing in which the goods are ordinarily sold in the course of wholesale trade to the wholesale buyer is includable in the assessable value - the degree of packing in which the excisable article is contained may vary from one class of articles to another. The Apex Court in the case of Union of India v. Godfrey Philips India Ltd. reported in 1985 (22) E.L.T. 306 (S.C.) has held that the cost of packing which is essential for protection of excisable goods during transportation is also includable in the assessable value. Relying upon these judgments, the Apex Court in other judgments in the case of Royal Enfield v. CCE, Chennai 2011 (270) ELT 637(SC) has held that the packing used by an assessee in respect of the goods, which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market would be includable in the assessable value. In this case, on the question as to whether the laminated sheets manufactured by the appellant are normally sold without packing or are sold in packed condition there are contradictory claims. The Commissioner (Appeals) in the impugned order has not given any finding on this issue and has simply disallowed its deduction. Therefore, on this point, the matter needs to be remanded to the Commissioner (Appeals) for ascertaining as to whether the goods manufactured by the appellant are normally sold without packing or are normally in wholesale trade in packed condition and after ascertaining this fact, the issue is required to be decided in accordance with the Apex Court judgment in the case of U.O.I. v. Bombay Tyre International Ltd. (supra), U.O.I. v. Godfrey Philips India Ltd. (supra) and Royal Enfield v. CCE, Chennai (supra).”
