9911796707
TMI Blog1998 (10) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer of aerated waters and took pulp based beverages for the manufacture of these products wooden crates were one of the inputs. After glass bottles were notified in the relevant notification in the Rule 87 as inputs for aerated waters till 1-10-1987 and for food based beverages till 11-9-1991. On this date by amendment glass bottles were deleted from the table saying from the date onwards assessees will be eligible for taking credit as inputs. Therefore the assessee manufacturing the beverages as a franchisee of M/s. Parle Exports. In terms of the franchisee agreement it was required of the franchisee to use bottles of a particular shape and size, which were manufactured by a person approved by the franchisor. In order to ensure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat for the issue to be decided certain factual appreciation was needed of the position showing the continuity of the flow of duty paid goods from the manufacturers of glass bottles to the appellants and their identity being established. It said only when the factual position is confirmed, the department can accept the endorsed gate passes and given the credit of duty as indicated in the gate passes. For giving the Modvat credit not only the duty paid nature of the goods should be established but also the quantum of duty credit which is to be given. Hence the sanctity of these documents both for purpose of establishing duty paid nature of the goods as also the extent of duty is to be given cannot be brushed aside. Only with this object, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lead us to a firm conclusion on the factual position. 5. As to the question of goods being repacked, it indicated that looking into the original packing may not be relevant and form basis for arriving at the conclusion with regard to the identity of goods. It therefore, set aside the order of the Collector (Appeals). The continuity of the identity of the bottles was a matter for the Assistant Collector to decide. 6. The Assistant Collector after considering the evidence such as franchise agreements and other data produced by the assessee held that it has not been established that the identity of the bottles continued from their departure till their receipt in the assessee s factory. He therefore, confirmed the demand. Collector (Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to establish the bottles it receives are those which are issued by their manufacturer and sent to the printers. It is further contended that gate passes are endorsed in pursuance of Board s instructions with necessary pre-conditons on credit to be taken on such cases that the goods must be received in original. Since the bottles are necessarily to be intact by the printers and repacked after this condition is satisfied. 8. The advocate for the respondent contends that the Collector (Appeals) has reasonably established co-relation between the empty bottles and the bottles received by the assessee. He says that this is what was contemplated in the order of the Tribunal and the order was never had contemplated the identity beyond do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not agree that there would be no other buyers of these bottles than the franchisee of Parle in the absence of any proprietorship in the design of bottles under trade marks law bottles were of such unique or specialised design that no other manufacturer of goods could their use. The possibility distinctly remains that such bot- tles could be utilised by other manufacturer. It is also possible that such manu- facturers may be having these bottles printed by the same or other printers. When the Collector (Appeals) himself does not say that identity of the bottles is established beyond doubt, the department s appeal succeeds on this point. We also emphasise that it [is] not within our scope to say whether the Tri- bunal s order was incorrect or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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