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TMI Blog2008 (12) TMI 456X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent. [Order per : M. Veeraiyan, Member (T)]. - This is an appeal against the order of the Commissioner (Appeals) No. 317-CE/BPL/2004, dated 29-9-04. 2. Heard both sides. 3. The appellant is a manufacturer of cement. They brought certain capital goods and took Modvat credit of duty paid on them and used the capital goods for considerable period time and thereafter, they were d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period (1-4-01 to 2002) there was no provisions similar to the Rule 57S(2)(C) or rule similar to Rule 3(5A) of Cenvat Credit Rules which was with effect from 16-5-05. He also relies on the decision of the Tribunal in the case of Kissan Co-op. Sugar Factory Ltd. v. C.C.E., Meerut-II - 2008 (226) E.L.T. 196 (Tri.-Del.) wherein it has been held that waste and scrap of old and used capital goods not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the time of purchase of the machine is wrong and incorrect." 6.2 The relevant portion of the Commissioner (Appeals) order upholding the order of the original authority is reproduced below : "5. From the submission made by the appellant it is evident that they had availed Modvat credit on the obsolete/outlived machineries when these were received and removed the same as waste and scra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or manufacture of excisable goods, hence, chargeable to excise duty. Accordingly, duty on such waste and scrap is payable. 6.3 We find that both the authorities have gone on the lines that the discarding of used capital goods will amount to manufacture of excisable goods. We are not able to appreciate the rational behind the said decision. The present case is akin to the case decided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ap in question is of old and used capital goods and it is not arising out of mechanical working of metals in the factory. The Tribunal in the decisions relied upon by the appellant specifically held that such scrap is not dutiable. In view of this, we find merit in the contention of appellant. Impugned order is set aside and appeals are allowed." 7. In the light of the above, we are not able ..... X X X X Extracts X X X X X X X X Extracts X X X X
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