TMI Blog2024 (4) TMI 902X X X X Extracts X X X X X X X X Extracts X X X X ..... n the support of decision of BIRLA CORPORATION LTD. VERSUS COMMR. OF C. EX., RAIPUR [ 2002 (11) TMI 239 - CEGAT, COURT NO. IV, NEW DELHI] which deals with the provisions of 57S (2)(c) of Central Excise Rules, 1944 which provides that in case of removal of capital goods as waste and scrap, the assessee is required to pay the duty after reducing 2.5% per quarter for the period of use of capital goods. The appellant have taken the support of decision of Birla Corporation Limited which deals with the provisions of 57S (2)(c) of Central Excise Rules, 1944 where it was held that where capital goods are sold as waste and scrap, the manufacturer shall pay the duty leviable on such waste and scrap. It can be seen that the provisions for payment of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 by calculating the same, deducting 2.5% per quarter is not required to be paid. 2.1 He submits that the appellant have correctly paid the duty on the transaction value. He placed reliance on the judgment in the case of Birla Corporation 2003 (162) ELT 499 (Tri. Del). 2.2 He submits that though the above decision is in respect of Rule 57 (2) (c) of Central Excise Rules, 1944 but the provisions of Rule 3 (5A) of Cenvat Credit Rules, 2004 and Rule 57 S (2) (c) of Central Excise Rules, 1944 are Pari-Materia, therefore, the judgment is directly applicable. 3. Shri P. Ganesan, Learned Superintendent (AR) appearing on behalf of the Respondent reiterates the finding of the impugned order. 4. We have carefully considered the submission made by bot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, other than computers........ (b) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. Substituted by Notification No. 12/2013-C.E.(N.T.), dated 27.09.2013) 4.1 In view of the above rule though it provides that in case of removal of capital goods as waste and scrap, the assessee is required to pay the duty after reducing 2.5% per quarter for the period of use of capital goods. However, the appellant have taken the support of decision of Birla Corporation Limited (Supra) which deals with the provisions of 57S (2)(c) of Central Excise Rules, 1944 which reads as under:- RULE 57S. Manner of utilisation of the capital goods and the credit allowed in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules are almost Pari-Materia, therefore, the decision of Birla Corporation is applicable. The said judgment is reproduced below:- 3. Appellant is engaged in the manufacture of cement. The main machinery employed for manufacture of cement is Kiln. The shell of which is made of steel and in order to protect the Kiln from being damaged by high temperature, the inner shell is lined with refractories known as firebricks which are classifiable under heading 6901.90 as fireclay bricks. These firebricks are designed to withstand a very high temperature of about 1500 C without cracking or breaking. Over a period of time, they lose their thermal resistance and become useless. At this point of time, the entire layer of firebricks is broken and disman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The finding of the Commissioner that the appellant is bound to pay duty in view of the provisions contained under Rule 57-S(2)(C) is totally unsustainable. The learned counsel placed reliance on two decisions of the Tribunal namely Knit Foulds Pvt. Ltd. v. C.C.E., Chandigarh - 1997 (95) E.L.T. 517 and Orient Paper Mills v. CCE, Indore - [2001 (136) E.L.T. 445 (T) = 2000 (41) R.L.T. 943]. 6. We heard the learned Departmental Representative also. 7. There is merit in the contention raised by the appellant that no duty under Rule 57S(2)(C) can be demanded from the appellant in the facts of this case. It is clearly admitted by the Revenue also that periodically fire bricks from the kiln are to be dismantled and then removed as it became usel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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