TMI Blog2010 (2) TMI 391X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction value. - E/114/2008 - 263/2010-SM(BR)(PB), - Dated:- 16-2-2010 - Shri Rakesh Kumar, Member (T) Cross Objection No. E/CO/206/2008 Shri S.K. Bhaskar, DR, for the Appellant. Shri S.D. Gaur, Consultant, for the Respondent. [Order]. - The facts giving rise to this appeal filed by the Revenue and Cross Objection by the Respondent are, in brief, as under : The Respondent are manufacturer of Flexible Packaging Laminate, Flexible Packaging Laminate Pouch and Paper Coated Plastic, chargeable to Central Excise Duty under Chapter 39 and 48 of the Central Excise Tariff. They had purchased duty paid capital goods during the period from Oct., 99 to Nov., 03, in respect of which they had taken capital goods Cenvat cre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Excise Act for contravention of the provisions of Rule 3(5) of Cenvat Credit Rules. The Respondent filed an appeal before the Commissioner (Appeals) against the Addl. Commissioner's order. Before the Commissioner (Appeals), it was pleaded that in the fire accident, which took place in Sept., 04, the entire plant and machinery was destroyed, that the plant and machinery had been sold as scrap and that in view of this, the clearance of the burnt plant and machinery cannot be said to be a removal of cenvated capital goods as such. The Commissioner (Appeals) vide order-in-appeal No. 116-CE/Noida/2007 dated 16-10-07 set aside the adjudication order and allowed the appeal. It is against this order that the Revenue has come in appeal before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i S.D. Gaur, Advocate, the learned Counsel for the Respondent, pleaded that on account of fire accident in the factory in Sept., 04, the intimation about which had been given to the Department on 15-9-04, there was total loss of the plant and machinery; that machinery was no longer capital goods capable of being used for manufacture of any product and for this reason, the same had been sold as scrap; that in view of this, the machinery which has been sold as scrap, had lost its identity as capital goods and, therefore, this could not be said to be a case where cenvated capital goods have been removed as such and that he relies upon the Tribunal's judgment in the case of CCE v. Geeta Industries reported in 2009 (249) E.L.T. 99 wherein the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the Department does not dispute that there was fire accident in the Respondent's factory in Sept., 04 in which the according to the Respondent, there was total loss of plant and machinery. The fact that the machinery purchased in about Rs. 52 lakhs during 1999-2000 period had been sold in Feb., 05 in Rs. 3,30,000/- indicates that the same had been sold as scrap only. There is no evidence produced by the Department that the machinery sold was not scrap but was usable capital goods. In view of this, it cannot be said that the capital goods had been removed as such. The duty has, therefore, been correctly paid on the goods on the transaction value. I, therefore, do not find any infirmity in the impugned order. The Revenue's appeal is d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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