The Maryland State Court of Appeals has upheld a Montgomery County tax on nonreturnable beverage containers sold in the country. The tax is the only one of its kind in Maryland and the second - Fairfax County has the first - in the metropolitan area.

County officials said the tax adds two to four cents to a container depending on its size and is expected to raise between $2 million and $4 million if it does not force people to stop buying nonreturnable beverage containers. Further legal questions concerning the tax must be answered in circuit court, and those familiar with the litigation said it will probably be "at least a couple of months" before it goes into effect.

The decision, made Tuesday, strikes down a ruling made by Montgomery County Circuit Court Judge Ralph G. Shure, who said the county was violating a state law, in effect, imposing a local sales tax.

The tax, passed by the County Council was attacked by the Maryland Soft Drink Association, Inc., and the city of Rockville as an illegal sales tax. They said the county had no authority to impose it.

The Court ruled that the tax did not meet the legal definition of a sales tax because it did not effect "the sales" of the nonreturnable beverage containers or their cost.

Judge Irving A. Levine said the tax merely covered the cost of supplying the beverages in containers.

The Maryland Court decision comes on the heels of a Fairfax Circuit Court ruling that enabled that jurisdiction to require stores to pay at least a 5-cent refund on used beverage cans and bottles - excluding beer and liquor - and stop selling pop-top cans. The Montgomery County law applies to all beverages, and includes cans.

W. Edward Gregory, public relations director for the Pepsi Cola Bottling Co., said he calculates the tax will add anywhere from 48 cents to $1.20 to the price of a 24-container case of beer. "This will force residents of Montgomery County to buy their beer (and soft drinks) in Prince George's County and the District. People will bring their containers back to the county, undoing the intent of the law," he said.

The move by both Montgomery and Fairfax counties to drive up the costs of nonreturnable beverage containers is directly designed to cut the costly clean-up of bottles and cans that are often discarded along highways and in parks, officials have said.

Although the Montgomery County tax will indirectly increase costs of nonreturnable beverage containers, the county has argued that the tax is geared primarily to gain additional revenue.

"For many of us (on the Council) it would be a desirable side effect" if the tax on nonreturnable bottles had the effect of eliminating them from the shelves of county stores, said Montgomery County Council Chairman Johh Menke.

Opposition to nonreturnable bottles was first expressed in the Council several years ago when a mandatory 5-cent per bottle deposit law was passed. However, County Executive James P. Gleason vetoed that measure, and the Council was unable to overturn it, according to Council member Norman L. Christeller.

Christeller then decided that in order to "get the damn cans and cheap bottles out of the litter stream" he would introduce an excise tax on the nonreturnable bottles, he said. His effort passed and was upheld Tuesday by the state's high court.

The soft drink association also extended that the Montgomery County tax measure would illegally tax alcoholic beverages, which local government cannot tax.

Judge Levine wrote: "This tax does not violate that because it taxes neither the contents of the containers nor measures the amount of tax by the contents."

The city of Rockville argued that the tax was designed as a regulatory measure and not to increase revenues. It also contended that the county could not impose the tax because the tax violated the state charter.

Judge Levine wrote that the tax was not a violation of the state charter and that the measure was aimed at revenue and not regulation.

The opponents of the tax also raised two federal issues, claiming that the Montgomery County tax is illegal because it is unconstitutionally vague and violates the federal commerce clause.

The Court of Appeals sent the case back to Circuit Court for a determination of those issues.