- (1.) The short issue raised in these two appeals CEA Nos. 114 and 115 of 2011 filed under Section 35 G of the Central Excise Act, 1944 (for brevity 'the Act') is ' whether the glass bottles and crates which are used for selling beverages and were re-usable would be exigible to excise duty or not'.
(2.) The assessee- respondents are engaged in the manufacture of aerated water and bottles of beverages syrup falling under Chapter 22 and 21 of Central Excise Tariff Act, 1985. They are purchasing glass bottles and crates. They also raise Cenvate Credit thereon. The aerated water filled in these bottles is supplied to the dealers and after sale the empty bottles are returned to the dealer. The Order-in- Original dated 5.6.2008 (A.3) and 23.7.2008 (A.4) decided the issue in favour of the assessee. The view taken by the Original Authority was affirmed by the Commissioner ( Appeals) and the Customs Excise and Service Tax Appellate Tribunal (for brevity 'the CSTAT') dismissed further appeal of the revenue. The view taken is that what is sold through the dealer to the consumer are beverages and it could not be said that the bottles and crates are sold.
(3.) We have heard learned counsel at a considerable length and are of the view that once there is a pure finding of fact that beverage alone are sold without selling of bottles and crates then it would be obvious that no excise duty would be chargeable on the bottles and crates. No question of law much less a substantive question of law within the meaning of Section 35G of the Act would arise and the appeal would not warrant admission. Both the appeals are accordingly dismissed.;