ORDER
V.K. Ashtana, Member (T)
1. The Revenue has filed a stay application in their appeal seeking stay of the operation of Order-in-Appeal No. 34/98 passed by Commissioner (Appeals) Hyderabad. The issue before the Commissioner was regarding grant of Modvat credit in respect of glass bottles. The assessee is manufacturer of aerated water and ready-made syrup falling under Chapters 22 and 21 respectively of the Schedule to the C.E. Tariff. The assessees have furnished two certificates from the Chartered Accountant dated 20-6-1998 for financial year 1994-95 and another relating to period 1-4-1995 to 31-10-1995, according to which, cost per crate of the aerated water includes components, the cost of bottles and the details were noted. They had also produced Chartered Accountant’s certificate dated 30-4-1994 for the financial year 1993-94 indicating therein that the cost per crate of the areated water includes the part of cost of bottles. The Commissioner has noted that the issue was squarely covered by the judgment of the CEGAT rendered in the case of Black Diamond Beverages Ltd. v. C.C.E. as reported in 1997 (22) RLT 37 wherein it had been held that if prorata cost of the glass bottles is included in the assessable value of the aerated waters then the glass bottles are eligible input under Rule 57A and are not hit by Clause (iii) of the explanation to Rule 57A, even after the duty on aerated waters was changed to ad valorem rate with effect from 1-3-1994. Boards’ letter No. 148/59/95-CX, dated 13-9-1995 clarifyig the issue was also referred. The Commissioner has also noted that judgments of the Tribunal that of Amrit Bottlers as reported in 1997 (23) RLT 637 (Tribunal) and Order-in-Original No. 1/97, dated 1-1-1997 passed by Commissioner of Central Excise, Hyderabad in the case of M/s. Sarvaraya Sugars Ltd. and after noting all the aspects of the law, he allowed the appeals and set aside the demands.
2. The grounds raised are that glass bottles in the nature of durable and returnable containers which are in fact returned to the factory after the aerated water is consumed. Even when the aerated water are produced, the deposit against the value thereof is taken from the consumers. Another ground is that the respondents have not shown any evidence regarding the details of the cost of glass bottles inasmuch as that they have not shown as to how many times the glass bottles are capable of being reused and that this information was necessary to arrive at the prorata cost which was claimed to be included in the assessable value of the aerated water.
3. Heard Smt. Aruna Gupta, ld. JDR who reiterates the grounds and upholds that it is not disputed that glass bottles are considered to be durable and returnable and therefore as per Section 4 value thereof is not to be included in the assessable value and Modvat credit cannot be claimed thereof. Since the Order impugned holds to the contrary the matter has a recurring effect and therefore she vehementally support the ground of stay against the order.
4. Heard Shri K.K. Anand, ld. Advocate for respondents who submits that the matter is already a covered one inasmuch as that the issue has been clearly considered both for the period 1-3-1994 and after 1-3-1994, i.e. after the change in the pattern of duty adopted, in the decisions of M/s. Black Diamond Beverages (supra), M/s. Amrit Bottlers (supra). He further submitted that the issue was again considered by the Tribunal in the case of Delhi Bottling Company and Others v. C.C.E. as reported in 1997 (22) RLT 697 (CEGAT). He further submits that the Tribunal has considered Reference against the decision of Black Diamond Beverges Ltd. (supra ) vide the decision as reported in 1998 \103) E.L.T. 655 has rejected the Reference application. He therefore submits that in view of the Chartered Accountant’s Certificates placed before the Commissioner (Appeals), and the application of that evidence, case laws etc. cited above, ld. Commissioner (Appeals) has rightly allowed their appeal by following the ratio of these judgments, which are well settled law. He submits that merely because the number of repeated use have not been indicated does not mean that the Chartered Accountant’s Certificates are erroneous because all these must have been considered by the Chartered Accountant before such a Certificate was issued. He also submits that merely because Glass Bottles are considered to be durable and returnable containers, it does not follow that the cost thereof is never included in the assessable value, therefore Modvat credit cannot be denied. This issue had been discussed at great length in Black Diamond Beverages Ltd. (supra). He therefore submits that there is no merit in the grounds of appeal of Revenue and since the issue lies on a short compass, he prays that the appeal itself may be taken up for consideration at this stage, after denying the stay requested.
5. We have carefully considered the rival submissions and records of the case. We find that the Order-in-Appeal impugned before us is a detailed and speaking order and relies upon both established case laws as well as evidences in the form of Certificates from Chartered Accountant to the effect that specified values of glass bottles have been included in the assessable value of the aerated water cleared by the manufacturers. In the grounds of appeal the Revenue has not led any evidence contrary to this except the assertion that the number of times to which the bottles have been put to repeated use has not been disclosed by the respondents. We find that while arriving at the prorata cost of glass bottles, the issue of repeated use would have necessarily been considered by the Chartered Accountant as per the recognised principles of the Accountancy and simply because all the details are not contained in the Certificates, that by itself does not render the Certificates invalid. If the Revenue suspected the authenticity of these certificates, the burden was on Revenue to produce sufficient evidence to challenge the same. We find that this has not been done. The other major ground of appeal by Revenue is that once a container is durable and returnable, then the value thereof is not includible in the assessable value under Section 4 . We find that this very issue was considered at great length and in Black Diamond Beverages Ltd. (supra) as well as in the other decisions noted above, the bottomline of all these decisions is that if there is evidence to show that the cost of glass bottles is included by the manufacturers in the assessable value of the aerated water, then even though the bottles are durable and returnable, Modvat credit thereon would be available to the manufacturer. We also noted that the Reference application against Black Diamond Beverages Ltd. (supra) was rejected by the Hon’ble Tribunal after a detailed consideration of the whole issue. We, therefore, find that the case law is clearly established by a large number of decisions noted above in this aspect and we have merely to apply the ratio thereof. Therefore we find that the matter lies on a short compass and after rejecting the stay application of the Revenue against the Order-in-Appeal impugned, we take up the appeals on merits itself for consideration. Respectfully applying the ratio of the aforesaid decisions and for the reasons already analysed above, accepting the Chartered Accountant’s Certificate as valid evidence, we find that there is no infirmity in the Order-in-Appeal which compel us to interfere with the same. The Revenue appeals are accordingly dismissed.