JUDGMENT Harish Tandon, J. The Commissioner of Central Excise, Calcutta-I, Commissionerate have impugned the order dated 13.08.1997 passed by the Customs Excise and Gold (Control) Appellate Tribunal, (herein after referred to as CEGAT) by which the appeal filed by the respondent no.1 against the order passed by the Commissioner (Appeals) Central Excise, Calcutta and order dated 12.06.1998 passed by CEGAT rejecting an application filed by the petitioner for referring the question of law to the High Court under Section 35G of the Central Excise Act, 1944. Shorn of unnecessary details, the fact emerges from the respective pleadings of the parties is that a show cause notice was issued on 29.08.1994 by the Superintendent of Central Excise, Range-D/8 upon the respondent no.1 for disallowance of modvat credit availed against the receipt of the Glass Bottles which is durable and returnable in nature and could not be added to the assessable value of the final product. It was contended that the said Glass Bottles though meant for packing attracts advalorem rate of duty with effect from 01.03.1994 and as per the provisions of Section 4 (4) (d) (I) of the Central Excise Act, 1944, the value thereof could not be added to an assessable value of the final product. The Assistant Commissioner of Central Excise, Calcutta Division disallowed the modvat credit and ordered for its reversal. The respondent no.1 appealed against the said order before the Commissioner (Appeals) of Central Excise, Calcutta which also suffers dismissal. Against the said appellate order, an appeal was filed before the CEGAT by the respondent no.1 which was subsequently allowed and the order of the assessing authority and the appellate authority were set aside. The Tribunal by the said order not only dispossess of the appeal filed by the respondent no.1 but other two appeals against the order of relating to the allowing of the modvat credit on Plastic Crates and Glass Bottles pertaining to the different period which was filed by the revenue. The Tribunal held that there is no inconsistency between the provisions contained under Section 4 of the Act and Rule 57A of the Central Excise Rules and the position has been clarified in the Board circular dated 13.09.1995 which allows the credit of duty paid on the Glass Bottles/Crates only if the value of such Bottles is included in the value of the final Product viz., the Bottles containing aerated water. The Tribunal further held that the circular binds the revenue and it cannot take a different stand. The petitioner, thereafter, filed an application for referring the question of law to the High Court under Section 35G of the said Act which are set out below: “1. Whether ‘Glass Bottles’ used for packaging/containing aerated water are eligible for modvat credit under Rule 57A of the Central Excise Rules, 1944 as it existed during the material period? 2. Whether the cost of durable and returnable packing which is statutorily excludible for the purpose of determination of assessable value of a product under Section 4 of the Central Excise Act, 1944 can be lawfully included in such assessable value at the option of any assessee for whatsoever reason? 3. Whether the Hon’ble CEGAT’s interpretation of clause (b) (iii) of the explanation appended below Rule 57A of Central Excise Rules, 1944 as it existed during the material period as contained at Para 7.1.1 to 7.1.3 of its impugned order dated 18.8.97 is lawfully correct? 4. Whether the provisions of Rule 57A of the Central Excise Rules, 1944 can override the provisions of Section 4 of the Central Excise Act, 1944? 5. Whether the Hon’ble Tribunal was correct in holding that the assessee is entitled to claim modvat credit by exercising his option to include the value of the durable and returnable packaging material or container in spite of the fact that such packaging material of container is specifically excluded from the definition of ‘input’ in Rule 57A of the Central Excise Rules, 1944 read with Section 4 (4) (d) (I) of the Central Excise Act, 1944.?” The Tribunal rejects the said application filed by the petitioner as the questions of law which the revenue intended to refer, does not arise at all. Impugning the aforesaid orders namely the order by which the Tribunal allowed the appeal filed by the respondent no.1 and the order by which an application for reference of questions of law to the High Court is rejected, the petitioner has filed the instant writ petition. At the very outset, the respondent no.1 took a preliminary objection that the instant writ petition is not maintainable in view of Section 35J of the said Act as the same is required to be heard by a bench of not less than two Judges of the High Court. At the very outset, the respondent no.1 took a preliminary objection that the instant writ petition is not maintainable in view of Section 35J of the said Act as the same is required to be heard by a bench of not less than two Judges of the High Court. In reply to the aforesaid preliminary objection, the petitioner says that the provision under Section 35J can only be pressed when the case has been referred to the High Court under Section 35G of the said Act and not otherwise. On noticing the provisions contained under Section 35J, the aforesaid provisions can be made applicable when any case has been referred to the High Court under Section 35G but it does not contemplate a situation where the Tribunal refuses to refer the case to the High Court and, therefore, it cannot be said that the writ petition is not maintainable. The learned Advocate appearing for the petitioner, however, submits that Section 4 (3) of the said Act provides for non-applicability of this section in respect of an assessable goods where the tariff value has been fixed under Sub-section 2 of section 3. Sub-section 4 of section 4 relates to the definition wherein Clause d defines the word ‘value’ in relation to any assessable goods where the goods are delivered at the time of removal in a packed condition, includes the cost of such packing except the cost of the packing which is durable in nature or returnable by the buyer to the assessee. Subsequently the modvat scheme was brought when Section 4 was therein existence. Rule 57A of the Rules, which gives an inclusive definition of ‘inputs’ to a packaging materials the cost of which is not included. Rule 57A is brought under the broad head “credit of duty paid on excisable goods used as inputs” for the purpose of allowing credit of any duty of excise to such finish excisable goods paid on the goods used in or in relation to the manufacture of the final products (inputs) subject to such conditions and restrictions that may be specified in the notification issued by the Central Government. The explanation appended thereto defines the “inputs” to include the final products manufactured and used within the factory of production, in or in relation to the manufacture of final products, paints and packaging materials and used as fuel but does not include, apart from other packaging materials, the cost of which is not included or had not been included during the preceding final year in the assessable value of the final products under Section 4 of the Act. Therefore, on the meaningful reading of the provisions, it appears that the manufacturer may not include the cost of packing in respect of the excisable goods which appears to be optional in nature. To avail the modvat credit, it should be manifest that the manufacturer has included the cost of the packing in the assessable value of the goods in terms of Section 4 of the said Act. The Aerated water, being the final products, are marketed in the Bottles which is repeatedly used for several times and ultimately get exhausted. An anamonal situation arose when the Aerated water have become chargeable to advalorem duty. By a circular dated 13.09.1995, it was clarified that because of the change in duty structure of Aerated water from a specific duty, the credit of duty, paid on Glass Bottles/Crates can be allowed only if the value of such Bottles is included in the value of the final products. The circular further clarified that the claim of modvat credit depends upon the fact of the each case and the authority must ascertain while allowing and/or disallowing the modvat credit. The questionnaire put in a show cause notice that whether the cost of packing charges are collected as declared in the price less, there was a specific answer that the said Glass Bottles and Crates have a limited life and the price is loaded to the cost on a prorata basis. It is not undisputed that the Modvat credit was allowed on inclusion of the prorata cost of the Bottles and Crates previously. A certificate by a Charter Accountant was also submitted to suggest that the cost of the Bottles and Crates being the integral part of the cost of production have been included in the cost of production on the basis of loss of Bottles and Crates during manufacturing operation handling within the factory premises. A certificate by a Charter Accountant was also submitted to suggest that the cost of the Bottles and Crates being the integral part of the cost of production have been included in the cost of production on the basis of loss of Bottles and Crates during manufacturing operation handling within the factory premises. According to the petitioner, the circular dated 13.09.1995 is contrary to Section 4 (4) (d) (I) of the Act and, therefore, the Tribunal should have referred the question of law to the High Court under Section 35G of the Act. The petitioners’ bone of contention is that the rules or the circulars cannot override the substantive provisions of the statutes and the petitioner can very well agitate that the said circular is invalid and should be struck down. In response to the aforesaid submissions, the respondent no.1 submits that the circulars may not bind the assessee or the tribunal but the department can not take a contrary stand and placed reliance upon a judgment of the Supreme Court in case of Union of India –vs- Arviva Industries (I) Ltd. reported in 2007 (209) ELT 5 (SC) and in case of Commissioner of Central Excise, -vs- Eswaran & Sons Engineers Ltd. reported in 2005 (179) ELT 272 (SC). It is further contended that the assessee cannot adopt a pick and choose policy as in one case, it accepted the proposition whereas in the other, a challenge is made and placed reliance upon a judgment of the Supreme Court in case of Commissioner of Income Tax –vs- J.K. Charitable Trust reported in (2009) 308 ITR 161 (SC). According to the respondents, the revenue in principle, accepted the inclusion of prorata cost of the Bottles and allowed the modvat credit in several cases, cannot take a different approach. The Apex Court in case of Arviva Industries (I) Ltd.,(supra) held that the revenue cannot take a stand that the circular issued by the Board is invalid and contrary to the statute. The Apex Court relies upon an earlier judgment rendered in case of Commissioner of Customs, Calcutta & ors., -vs- Indian Oil Corporation Ltd. & anr., reported in (2004) 3 SCC 488 wherein it is held that although the circular is not binding on a Court or an assessee but it is not open to the revenue to raise a contention contrary to such binding circular issued by the Board. So long the circular is in operation, the revenue is bound by it and cannot contend that it is not valid or it is contrary to the terms of the statute. In case of Birla Jute Industries Ltd., -vs- Assisstant Collector of Central Excise reported in 1992 (57) ELT 674 (Cal), this Court while considering the provisions contained under Section 37B of the Central Excise and Salt Act, 1944 held that the Central Excise Officers are statutorily bound by the instructions of the Board and cannot take a contrary stand in these words: “17. The difference in the views expressed is more apparent than real. It is true that the Central Excise Officers are statutorily bound to abide by the instructions of the Board regarding classification if Section 37B is not to be reduced to a dead letter. At the same time it cannot be lost sight of that several decisions noted above have held that Central Excise Officers acting quasi-judicially must exercise their independent judgment. 18. In my view the principles that emerge from the aforesaid decisions read in the light of Section 37B of the Act are: (1) There is a distinction between a decision in a particular assessment by a quasi-judicial authority and a decision on principle by the Board. While an instruction issued under Section 37B cannot be binding upon a quasi-judicial authority under the Act, the departmental officers conducting the lis before such quasi-judicial authority cannot take a stand contrary to the directive/instruction issued. (2) The instructions which may be binding on the Central Excise Officers are not binding on the Assessee who may question the correctness of the same before a quasi-judicial authority and before a Court. Both the quasi-judicial authority and a fortiori, the Court, can question the correctness of the instructions. (3) An assessee has on the other hand the right to claim and the Court may compel compliance with such instructions as are for the benefit of the assessee by the Central Excise Officers.” The law enunciated in case of Birla Jute Industries Ltd.,(supra) was accepted in toto by the Apex Court in case of Eswaran & Sons Engineers Ltd (supra). The law as settled in the aforesaid reports leads to an inevitable conclusion that the circular dated 13.9.1995, wherein the Board allowed the credit of duty paid on Glass Bottles/Crates only if the value of such Bottle is included in the value of the final product in case of a claim for modvat credit, binds the revenue and they cannot take a stand that the said circular is contrary to either Section 4 of the Act or Rule 57A of the Rules. The another limb of arguments advanced by the respondent that the department cannot take a differential attitude while accepting the order in one case and the challenge is thrown in another is well-recognized in view of the judgment rendered by the Apex Court in case of J.K. Charitable Trust (supra) in these words: “If the assessee takes the stand that the Revenue acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish mala fides. As a matter of fact, as rightly contended by the learned counsel for the Revenue, there may be certain cases where because of the small amount of revenue involved, no appeal is filed. Policy decisions have been taken not to prefer appeal where the revenue involved is below a certain amount. Similarly, where the effect of the decision is revenue neutral there may not be any need for preferring the appeal. All these certainly provide the foundation for making a departure.” The identical point cropped up before the Division Bench of the Punjab & Haryana High Court in case of C.C.E., Chandigarh-II –vs- Dhillon Kool Drinks & Beverages Ltd. reported in 2008 (229) ELT 193 (P&H) and it is held: “After hearing learned Counsel and perusing the record we find that there is no merit in these petitions and the same are liable to be declined. We find that under Rule 57A of the Rules, Modvat credit is admissible on the specified inputs used in the manufacture of final product. Explanation (iii) to Rule 57A of the Rules define that inputs does not include packaging material if its value has not been included during the preceding financial year in the cost of assessable value. We find that under Rule 57A of the Rules, Modvat credit is admissible on the specified inputs used in the manufacture of final product. Explanation (iii) to Rule 57A of the Rules define that inputs does not include packaging material if its value has not been included during the preceding financial year in the cost of assessable value. The Tribunal has categorically found as a fact that the cost of packing material has been included in the assessable value although on installment basis and, therefore, the assessees’ are entitled to Modvat credit of duty. The plea taken by the assessees’ that the cost of glass bottles and plastic crates was included in the aerated water could not be rebutted by the revenue.” The same view is expressed in another judgment rendered in case of Commissioner of Central Excise, Chandigarh-I –vs- Kandhari Beverages Ltd reported in 2008 (223) ELT 147 (P&H) that if the value of the Glass Bottles and Plastic Crates are included on a prorata basis in the assessable value of the aerated water, it satisfies the Recruitment of Rule 57A of the Central Excise Rules 44 in these words: “4. It has been categorically found that in the instant case also the assessee had submitted a Chartered Accountant’s certificate proving clearly that the value of glass bottles and plastic crates was on pro rata basis included in the assessable value of aerated waters, which satisfy the requirement of Rule 57A of the Central Excise Rules, 1944. Once the aforementioned finding of fact has come then there is no scope left for us to interfere in those findings of fact. This Court cannot in any case re-appreciate evidence to reach a conclusion different than the one reached by the Tribunal merely because another view is possible. There is, thus, no question of law which would emerge for reference to this Court. Accordingly the prayer of the revenue is declined.” Admittedly the respondent no.1 have been including the value of the Glass Bottles and the Plastic Crates on prorata basis in the assessable value of the final products i.e. the aerated water which is permissible under the circular dated 13.09.1995. The department cannot take a different stand and say that the aforesaid circular offends Section 4 of the Act. The department cannot take a different stand and say that the aforesaid circular offends Section 4 of the Act. The respondent no.1 also submitted the report of the Charter Accountant suggesting the aforesaid fact and, therefore, this Court does not find that the stand of the petitioner can at all be tenable. In view of the above, this Court does not find any merit in the writ petition. The same is hereby dismissed. However, there shall be no order as to costs.