UNION OF INDIA Vs. CHHATTISGARH BEVERAGES PVT LTD

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE present appeal filed under section 35-G of the Central Excise Act, 1944 (for short "the Act, 1944") arises from the order passed in Case No. E/4117/04-NB/SM passed by the Principal Bench, Customs, Excise and Service Tax Appellate Tribunal (for short `the CESTAT') New Delhi, on 20.07.2005 (Annexure A/1) whereby the appeal filed by the respondent/assessee was allowed.

(3.) SHRI Manish Sharma, learned counsel appearing for the appellant/revenue submits that the decision of the CESTAT is based upon its earlier decision in the case of CCE, Jalandhar v. Dhillon 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 computing the assesseable value, is not correct. The respondent/assessee submitted a certificate dated 30.04.1994 from S.V.Ramana & Company, Chartered Accountants certifying the cost of aerated water from the year ending 31st March, 1994. It has been certified that the above figures were as per the book of accounts maintained and other relevant information made available to him by the respondent/assesse. This certificate neither contains the registration number of Chartered Accountants with the Institute of Chartered Accountants nor his seal. Further, the break-up and various elements, which had been considered and on the basis of which the cost per crate of aerated water was determined had not been furnished. This certificate is therefore, incomplete in material details and cannot be considered as true and correct. The cost computation sheets do not indicate the period of the cost data. It neither contains any date nor the name or designation of the officer who is certifying the correctness of the computation of cost except a seal of the company with some initials. The cost computation sheet captioned as Cost of Production Statement for the year ended 31.03.1994 does indicate inclusion of Rs. 2/- as cost of empty bottles, while working out the cost of various brands of aerated water. However, there is no implication regarding the nature of cost of empty bottles included in the cost.