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TMI Blog2012 (3) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate issued by the Chartered Accountant and as such, they are entitled to avail the Modvat credit - the appeal, is dismissed as it does not raise any substantial question of law as the appeal against the order of the CESTAT cannot be entertained if it involves a question of fact - Central Excise Appeal No 01 of 2006 - - - Dated:- 9-1-2012 - Shri Satish K Agnihotri, Honble Shri Radhe Shyam Sharma, JJ. Shri Manish Sharma Advocate for the appellant Shri Manoj Paranjpe Advocate for the respondents Judgement Per SATISH K. AGNIHOTRI, J. 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 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority vide his order dated 4/5.9.95 (Annexure A/3) allowed the Modvat credit, as aforestated and dropped the show cause notice. The appellant preferred an appeal before the Commissioner (Appeals) Central Excise, Raipur against the order dated 04/05.09.1995 passed by the Deputy Commissioner. The appellate authority i.e. Commissioner (Appeals) set aside the order dated 04/05.09.1995 of the Deputy Commissioner, vide its order dated 09.07.2003 (Annexure A/4). Thereagainst, the respondent/ assessee filed an appeal before the CESTAT, which, by the impugned order dated 20.07.2005 (Annexure A/1) allowed the appeal and allowed Modvat credit on the articles, as aforestated. 5. Shri Manish Sharma, learned counsel appearing for the appellant/revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / produced out of craft paper or paper or paper board on which the duty of excise has been paid @ 37 +% . The burden to prove the same was on the manufacturer and such fact was to be proved to the satisfaction of the appropriate officer. Shri Paranjpe would next submit that the scope of section 35-G of the Act, 1944 is restricted to the case where the order passed by the appellate tribunal involves a substantial questions of law. The appeal against the order of the CESTAT cannot be entertained if it involves a question of fact asto whether in a given case the manufacturer availing Modvat credit on the packaging materials and containers, adds the cost of such packaging material on the cost of packaging material/containers in the assessed val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of is on the person who claims the exemption. 10. It is indisputable that Rule 57-A of the Central Excise Rules, prevailing during the period in between March 1994 to August, 1994, provided for Modvat credit of the Central Excise Duty on packaging materials or containers. In the case on hand, the only issue is asto whether the assessee has established that the glass bottles and the crown corks were included in the assessable value of aerated water. The Assessing Authority i.e. Deputy Commissioner, Central Excise, after having considered the case of all the parties, came to the conclusion and observed as under: "As per this cost production certificate, cost of empty bottles for Rs. 2/- per crate is included in the assessable value declar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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