Judgment:
1. These are five appeals. Appeal Nos. E/1643/86, 2308/86, 2461/86 and 2462/86-A are filed by the appellants and remaining appeal No.E/1905/86-A is filed by the Department. Since the issues are similar in all the five appeals they are, therefore, clubbed together and are being disposed of by this common order.
2. Arguing for M/s. Bradma of India Limited Shri Gopal Prasad, learned Advocate submitted that the issues are common in Appeal Nos.
E/2308/86,1643/86,2461 and E/2462/86-A arising with reference to rejection of refund claim. He submitted that he is not representing appeal No. 2461/86-A. Accordingly this appeal is dismissed as such.
3. As for the remaining appeals filed by the party he submitted that the appellants have manufactured specified office machine models and sold only to the bank and such type of sale has to be treated as retail and it cannot be said that it was a wholesale price. He submitted that authorities were just not right in rejecting claim of the party as retail sale. He submitted that cost of reduction with reference to secondary packing is also involved in this case but same was decided in favour of the assessee and no appeal was filed by the Department with reference to Order-in-Appeal HN-295 B-III-95/96, dated 8-9-1986. But Shri G.D. Sharma, learned JDR pointed out that in the appeal filed by the department with reference to appeal No. E/1905/86-A with reference to Order-in-Appeal dated 1-4-1986 the point of secondary packing was also taken.
4. We find that the issue with reference to secondary packing has been squarely covered by the decision of the Supreme Court in the case of Geep Industrial Syndicate Limited reported in 1992 (61) E.L.T. 328 (SC) wherein it was held that even if the card board cartons are packed in wooden boxes in all cases it is clear that the cost of such secondary packing in wooden boxes is not includible in determining the value of the batteries and torches. It was also pointed out by the learned Advocate this view was affirmed by the Supreme Court in the case of Madras Rubber Factory Limited reported in 1995 (77) E.L.T. 433. In view of observation of the Supreme Court on this issue we uphold that Collector (Appeals) was right in holding cost of secondary packing is not includible in the assessable value of the product.
5. As regards retail, we are not convinced with the arguments advanced on behalf of the appellants that it is retail and not wholesale. The Section 4(4)(e) defines 'wholesale trade' as wholesale i.e. sales to dealers, in- dustrial consumers, government, local authorities and other buyers who purchase their requirements otherwise than in retail.
6. Shri Gopal Prasad, learned Advocate emphasised that since the goods were sold to bank and they purchased their requirement in retail it has to be treated retail and not as wholesale. On going through the definition we find that Section 4(4)(e) clearly envisaged whenever sale takes place either to dealer or to industrial consumer or the Government and local authorities for their requirement, in other words for their own use it should be treated as wholesale. Admittedly it was sold to bank-cum-banking industries and definition includes whole sale trade means sale to industrial consumers. We do not find any substance in the argument advanced on behalf of the assessee. Accordingly we do not find any infirmity in the impugned order on this issue.
7. As regards appeal filed by the Department it was urged on behalf of the Revenue that Collector (Appeals) erred in allowing abatement of marketing expenses. On going through the impugned order we find that he has given allowance for abatement freight and insurance and not to the market expenses. We find that he has made it clear that market expenses are not allowable and further he has made in his order that no abatement can be given with reference to market expenses as claimed by the party. With this observation all these 5 appeals are disposed of in the above terms.