TaxTMI 
TaxTMI 
2012 (3) TMI 147
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....for short `the CESTAT') New Delhi, on 20.07.2005 (Annexure A/1) whereby the appeal filed by the respondent/assessee was allowed. 3. The appeal was admitted on the following substantial question of law : "Whether the Tribunal was correct in setting aside the order of Commissioner (Appeals) and allowing the appeal of the respondent with consequential relief on the issue to the effect that the respondent was eligible for taking modvat credit on the glasses of bottles on its findings that value of the same was included in the assesseable value of aerated water during the material period without ascertaining the fact in this regard?" 4. The facts, in brief, are that the respondent/assessee is engaged in the business of manufacturing of....
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....n Kool Drinks & Beverages Ltd. Phillaur, in the final order dated 14.02.2005 against which the appellant/revenue filed an appeal before the High Court of Punjab & Haryana. As per section 4(4)(d)(i) of the Act, 1944, returnable packing is not to be included in the assesseable value and as per clause (iii) of the explanation to Rule 57 A of the Central Excise Rules, the cost of packing material which is not included or had not been included in the preceding financial years in the assesseable value of the final product under Section 4 of the Central Excise Act, does not qualify as `inputs' for the purpose of the Modvat credit. The contention of the respondents that the cost of glass bottles and crown corks was included in the value for computi....
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.... of packing materials included in the value of excisable goods for the purpose of charging duty. This finding is derived from the ratio of the Supreme Court's judgment in Jayesh Containers v. CCE, Baroda1. The Tribunal has not given any finding on the issues involved in this appeal. It appears that the Tribunal has confused the issue of inclusion of value of "empty glass bottles and crown corks" with the inclusion of value of the "broken glass bottles". 7. On the other hand, Shri Manoj Paranjpe, learned counsel appearing for the respondent/assessee would submit that the order passed by the Tribunal in case of Dhillon Kool Drinks has not attained finality, does not survive because the Punjab & Haryana High Court has dismissed the appeal fil....
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....l filed by the appellant/revenue, the same was dismissed by the Punjab & Haryana High Court in Dhillon Kool Drinks. In view of the above submission, the appeal filed by the appellant/revenue is not maintainable for the reason that it does not involve any substantial questions of law and secondly, the question of fact, relevant for the purpose of allowing Modvat credit on the packaging materials/containers, stands decided in favour of the respondent/assessee not only by the original adjudicating authority but also by the CESTAT, the order of which is under challenge in the present appeal. 8. Contention of Shri Sharma that the CESTAT has not considered the facts of the case and relying on a decision of the Tribunal in CCE, Jalandhar v. Dhill....
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....ributed over sale units as the bottle is recycled for the number of times. Similarly crown cork is also used in each bottle and is consumed each time the aerated water bottle is opened by a consumer. Crown corks are not returnable and the cost of crown corks at the rate of Rs. 5.58 per crate are also not included in the value of the aerated water. " and consequently, dropped the show cause notice dated 02.09.1994, bearing No. V(CH.22)15=68/94Adj/21121. The Assessing Authority further held that the bottles were durable and returnable is not relevant because explanation appended in Rule 57-A of the Central Excise Rules disqualifies the bottles or containers for Modvat credit. The Commissioner of Central Excise (Appeals), by order dated 09.07.....