- (1.) The Commissioner of Central Excise, Calcutta-I, Commissionerate have impugned the order dated 13.08.1997 passed by the Customs Excise and Gold (Control) Appellate Tribunal, (herein after referred to as CEGAT) by which the appeal filed by the respondent no.1 against the order passed by the Commissioner (Appeals) Central Excise, Calcutta and order dated 12.06.1998 passed by CEGAT rejecting an application filed by the petitioner for referring the question of law to the High Court under Section 35G of the Central Excise Act, 1944.
(2.) Shorn of unnecessary details, the fact emerges from the respective pleadings of the parties is that a show cause notice was issued on 29.08.1994 by the Superintendent of Central Excise, Range-D/8 upon the respondent no.1 for disallowance of modvat credit availed against the receipt of the Glass Bottles which is durable and returnable in nature and could not be added to the assessable value of the final product. It was contended that the said Glass Bottles though meant for packing attracts advalorem rate of duty with effect from 01.03.1994 and as per the provisions of Section 4 (4) (d) (I) of the Central Excise Act, 1944, the value thereof could not be added to an assessable value of the final product. The Assistant Commissioner of Central Excise, Calcutta Division disallowed the modvat credit and ordered for its reversal. The respondent no.1 appealed against the said order before the Commissioner (Appeals) of Central Excise, Calcutta which also suffers dismissal. Against the said appellate order, an appeal was filed before the CEGAT by the respondent no.1 which was subsequently allowed and the order of the assessing authority and the appellate authority were set aside. The Tribunal by the said order not only dispossess of the appeal filed by the respondent no.1 but other two appeals against the order of relating to the allowing of the modvat credit on Plastic Crates and Glass Bottles pertaining to the different period which was filed by the revenue.
(3.) The Tribunal held that there is no inconsistency between the provisions contained under Section 4 of the Act and Rule 57A of the Central Excise Rules and the position has been clarified in the Board circular dated 13.09.1995 which allows the credit of duty paid on the Glass Bottles/Crates only if the value of such Bottles is included in the value of the final Product viz., the Bottles containing aerated water. The Tribunal further held that the circular binds the revenue and it cannot take a different stand.;