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TMI Blog2013 (11) TMI 1027X X X X Extracts X X X X X X X X Extracts X X X X ..... mar :- The appellant are manufacturers of manmade yarn chargeable to Central Excise duty. They have two units located at different locations. The other unit had cleared certain Cenvat credit availed used capital goods to them as scrap during 2006-2007 on payment of duty of Rs. 3,31,362/- in terms of the provisions of Rule 3 (5A) of Cenvat Credit Rules. The appellant unit took Cenvat credit of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,000/- on the appellant under Rule 15 (1) of Cenvat Credit Rules. Against this order of the Commissioner (Appeals), this appeal has been filed. 2. Heard both the sides. 3. Shri Bipin Garg, Advocate, the learned Counsel for the appellant, pleaded that the issue involved in this case stands decided in favour of the Appellant by judgment of the Tribunal in the case of Maharshi Alloys (P) Ltd. vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the judgment of the Tribunal in the case of Maharshi Alloys (P) Ltd. vs. CCE, Tirupathi (supra) is distinguishable, as in that case, though the used dismantled crane was cleared as scrap, a Chartered Engineer had certified the same as usable, while this is not so in this case and the capital goods after being used for some time had been cleared as scrap. He, therefore, pleaded that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be used only as input and not as capital goods. This view of the department is not correct, as even if the appellant unit had received scrap capital goods, it is not disputed that they had used the same as capital goods. The question as to whether any goods are capital goods or otherwise has to be determined on the basis of how the same are used. Moreover, this issue stands decided in favour of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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