The petitioner manufactures a number of excisable products.. Out of such products, the following products are admittedly packed;, in metal containers -


Caustic soda


2. V.N.N. Oil (V)


3. Bleaching powder


4. Vanaspathi


5. Methylene Chloride


6. Chiereform


7. Carbon Terrachloride


8. Calcium Chloride.


The petitioner has not stated that the aforesaid eight products can be pushed into the market al the factory gate for sales without they being packed in metal containers. The petitioner manufactures the metal containers also. Such metal containers by themselves are excisable goods and as such the petitioner paid excise duty on suph metal containers under Item 46 of the First Schedule to the Central Excises and Salt Act 1 of 1944 (hereinafter referred to as the Act)


2. The 'eight finished products in the metal containers also underwent the levy of excise duty. The petitioner wanted refund of the excise duty paid as above for the period from 1-3-1970 to 1-10-1974 on two basis; firstly, that the value of the metal containers must be equated to packing charges, which are in the nature of post-manufacturing expenses, and therefore such value should be excluded from the assessable value, of the eight finished products referred to above under Section 4 of the Act. Secondly, that the metal containers as such having already suffered the excise duty cannot be made to suffer once again excise duty, when the eight products are packed in the metal containers and pushed into the market. This move of the petitioner has not found the countenance of the respondents. The petitioner challenges the orders of the respondents in this regard.


3.It is nowhere stated that the eight products referred to above are being marketed at the factory gate as finished products without they being packed in metal containers. In the said circumstances, it has got to be held that the manufacture of the said eight products will take in also.:the process of putting them into the metal containers, for the purpose of being pyshed into the market as marketable commodities at the factory gate it is true that incalculating the wholesale price, post-manufacturing expenses, must be excluded. But then the question is as to whether a particular expense is a post manufacturing expense or part of the manufacturing expenses. The answer to that queston will depend on the facts of each case. Manufacture will include each and every process incidental or ancillary to the completion of the manufacture of the product, so as to put the same into market as a marketable commodity at the factory gate. The wholesale price at the factory gate is the:quantum on which levy should be made. InAurofood Pvt.Ltd.v.Gmt. of India, Ministry' of Finance (Dept. of Revenue and Insurance) New Delhi and others, W.P.3151 of1975, Judgment dated 8-2-1978, 1978 E.L.T. (J 673), 'Mohan J. dealt with the case of biscuits manufactured by the petitioner therein. In that case certain biscuits were marketed only after being packed in containers. The learned Judge held that the packing in tin containers cannot be characterised as post-manufacturing operation, so as to excludes the cost of the tin containers and it is the value at wholesale pries when the excisable article is delivered at the factory gate, which should provide the quantum for the levy; The ratio of Mohan J. applies squarely to the facts of the present case.


4.Mr. V. Narayanaswami, learned counsel for the petitioner, would refer to me a judgment of Koshal J. inE. I.D. Parry Ltd. and Shaw Wallace and Co. Ltd.v.Union of India, represented by the Joint Secretary, Ministry of Finance(Dept. of Revenue and Insurance), Govt. of India, New Delhi, W.P. 1746 of 1972 etc. judgment dated 11-3-1977, 1978 E.L.T. (J 18), and would submit that packing in the form of containers must be held to be post-manufacturing expenses, not to be included in the excisable value. In that judgment, the question that came before the learned Judge was as to whether chemical fertilisers manufactured early to 1st March, 1969, which were not assessable to excise duty before 1st March, 1969, would become so assessable merely because they got packed into gunny bags etc. after 1st March, 1969. On the facts of that case, the learned Judge held that such process could not become part of the manufacturing process and the mere transfer of the end product into containers which can be handled conveniently would not form part of the manufacturing process and the fertilizer in question having already been manufactured prior to 1st March, 1969, could not be held to have undergone any further process of manufacture after 1st March, : 1969, so as to become assessable to excise duty.The judgment of Koshal J. has been referred to by Mohan J. in the judgment mentioned above and the learned Judge has also rightly held that the judgment of Koshal J. cannot be of any assistance to decide the question in issue.


5. Mr. V. Narayanaswami, learned counsel for the petitioner referred to me the judgment of Madhya Pradesh High Court (Indore Bench) inMalwa Vanaspati and Chemical Co. Ltd., Indorev.Union of India through Secretary, Ministry of Finance, New Delhi, 1979 ELT 243. That was a case where the vegetable product 'Vanaspati' after manufacture was packed and sold in metal container which are durable in nature and are returnable to the petitioners. On the facts of that case, the Division Bench of the Madhya Pradesh High Court held that the price of the containers and the freight and transport charges should not be included in the price of the product for determining the value under Section 4 of the Act. The learned counsel for the petitioner also relied on the Judgment of the Calcutta High Court inHindustan pilkingtonto Glass Works Ltd. v.Superintendent, Central Excise, Asansole and others, ; 1978E.L.T.(J 229). That was a case involving manufacture of wire and figured glass of various qualities at the factory site of the party concerned. For-the purpose of forwarding such products to the sales organisation, the products were subjected to special packing and in those circumstances it was held the cost of packing, freight and transport charges are post-manufacturing cost and cannot be included in determining the assessable value of the goods.


6.In view of the fact that the eight products manufactured by the petitioner are not supposed to be marketed at the factory gate without they being put in the metal containers and such is also not the case put forth by the petitioner at any point of time it has got to be held on the first contention urged by the learned counsel for the petitioner that the cost of the metal containers cannot be excluded from the excisable value of the eight' finished products.


7.The next contention relates to the alleged double taxation. There is no dispute that the metal containers are

manufactured by the petitioner and as they are so manufactured, excise duty is leviable, under Item 46 of the First Schedule to the Act. If the said metal containers are again utilised for, the purpose of finishing another product so as to put the same into the market, necessarily it becomes part and parcel of the other product and if the value of the metal containers is not to be held as post-manufacturing, 'expenses, then it becomes part of the excisable value of the other product, which it contains. Hence I am not able to appreciate and accept this contention of the learned counsel for the petitioner. For all these reasons, I do not find any warrant for interference in writ jurisdiction and the writ petition fails and the same is dismissed. There will be no order as to costs.