TMI Blog2016 (3) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... the term sale of capital goods as waste and scrap then the excise duty shall be payable on the transaction value of the waste and scrap. It is to be kept in mind even after use for some time if the capital goods is sold then also the excisable duty is payable in terms of Clause (b) after allowing the deduction of 2.5% of credit taken for each quarter. Therefore when the capital goods is not installed or has not been used its clearance will clearly fall under the clause (a) of Sub-Rule (2) and not under Clause (c). It is therefore of the view, that the appellant is required to pay excise duty on the capital goods cleared without being used in terms of clause (a) of Sub-rule (2) of Rule 57S of the Central Excise Rules, 1944. Accordingly, equal amount of Cenvat Credit which has been availed shall be payable by the appellant. Commissioner by careful application of mind, after interpreting the provisions of rule 57S(2) held that the removal of capital goods in the present case is covered under Sub-rule (2)(a). - Decided against assessee - Appeal No. E/1622/2010 - A/86089/16/SMB - Dated:- 16-2-2016 - Ramesh Nair, Member (J) For the Appellant : Shri Rajesh Ostwal, Adv For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vat credit Rules 2002. As per saving cause provided under Section 38A and Explanation given there under it only applies to Cenvat Credit and not on the provision of penalty, therefore penalty which was imposed under Rule 57U(6) is not applicable. In this regard, he placed reliance on the following judgments: (i) Chemo Pulp Tissues vs. Commissioner of C. Ex, Meerut 2000 (119) ELT 715 (Tribunal-LB) (ii) Commissioner of Central Excise, Coimbatore vs. Ranga Vilas GS W Mills 2002 (149) ELT 742 (Tri-Chennai) (iii) Shaw Wallace Co. Ltd. vs. Commissioner of Central Excise, Kanpur2003 (156) 406 (Tri-Del). 4. On the other hand, Shri R.K. Maji, Ld. Assistant Commissioner (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order. 5. I have carefully considered the submissions made by both the sides. The facts is not under dispute that the appellant have availed the Modvat Credit on capital goods which was neither installed in the factory of the appellant nor used for the manufacture of final product. The capital goods were without putting into use cleared showing as waste and scrap. The provision for duty liability on removal of capital g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where capital goods are sold as waste and scrap. Therefore, intention of the legislature is very clear that when the removal of capital goods is without being used is different from the capital goods sold as waste and scrap that means the term sale of capital goods as waste and scrap then the excise duty shall be payable on the transaction value of the waste and scrap. It is to be kept in mind even after use for some time if the capital goods is sold then also the excisable duty is payable in terms of Clause (b) after allowing the deduction of 2.5% of credit taken for each quarter. Therefore when the capital goods is not installed or has not been used its clearance will clearly fall under the clause (a) of Sub-Rule (2) and not under Clause (c). I am therefore of the view, that the appellant is required to pay excise duty on the capital goods cleared without being used in terms of clause (a) of Sub-rule (2) of Rule 57S of the Central Excise Rules, 1944. Accordingly, equal amount of Cenvat Credit which has been availed shall be payable by the appellant. As regard, the judgments relied upon by the Ld. Counsel, I find that in case of Motor Industries co. ltd. (supra) the capital goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of any rule, notification or order so amended, repealed, superseded or rescinded; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded. From the above Explanation it is very clear that any act or omission shall not be punishable if the said act or omission would not have been punishable in the old provision. In the present case, under modvat provisions provided under erstwhile Central Excise Rules 1944, the act of wrong availment of modvat credit was very much punishable and penal provisions was existing. Therefore, the Explanation is of no help to the appellant as regard imposition of penalty. In this regard the judgment relied upon in the case of Chemco Pulp Tissues, Ranga Vilas GS W.Mills, Shaw Wallace Co. Ltd. the offence involved in those cases was not punishable before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oper procedure laid down under Central Excise Law. However, on perusal of the records, it transpires that the appellants in their classification declaration had classified Waste Scrap a LC-45 Castables under chapter sub-heading NO. 3816.00 and not as Rejected Castables ACCMON-45. 6.6 Further, the classification declaration filed by the appellant, on 06.05.1998 i.e after removal of said Castables ACCMON-45, was on the basis of generic description and use of the Castables under Chapter heading No. 3816.00 of the CETA, 1985. From the above it is clear that the said goods cleared by the appellant are not waste scrap of Castables as declared by the appellant in their classification declaration filed under Rule 173B of the erstwhile Central Excise Rules, 1944. Further, the citations relied by the Appellants pertain to issue of classification and are not relevant in the present circumstances. 6.7 In view of the above facts on record to establish that the appellants had removed the above said Capital goods, without putting them to sue in the factory, to the original manufacturer, they were required the pay duty on the above said capital goods in terms of the Rule 57S(2)(a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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