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TMI Blog2016 (11) TMI 429X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner (A.R.) for the Respondent. ORDER Per Mr. Anil Choudhary : The appellant, M/s Orient Bell Ltd., is in appeal against Order-in-Appeal No.NOI/EXCUS/002/APP/330-331/2014-15 dated 23/01/2015 passed by the Commissioner (Appeals), Central Excise & Service Tax, Noida. 2. The issue in this appeal is whether capital goods were removed as such, after user for about four years, the appellant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on column old and discarded JCB not usable. The show cause notice dated 25/10/12 was issued pursuant to audit, proposing to Levy Excise duty on the transaction value amounting to Rs. 83,382/- as it appeared to revenue that the appellant have disposed of the capital assets as waste and scrap and accordingly, under Rule 3 (5A) of CCR is required to pay duty on the transaction value. The appellant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore Commissioner (Appeals), who vide the impugned order have been pleased to uphold the demand rejecting the appeal observing that the appellant cleared the old and discarded JCB machines under the description " not usable on the invoice. The said description clearly shows that the old and discarded JCB machines have been removed as not usable, due to long span of use and hence, have attained th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that as the capital goods in question have been cleared after 10 years of use, the capital goods ipso facto changed the character to waste and scrap. It is further urged that the Levy of duty under Rule 3 (5A) is wholly arbitrary and not according to the scheme of the Act and the Rules, it is fit to be set aside. Further, in absence of any clear-cut guidelines, Revenue cannot assume that capital ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than 20% can be treated as a scrap value. In the facts of the present case, even by the rule of thumb, the price received on sale of the JCB machines (about 40% of purchase value) by the appellant, cannot be said to be scrap value. I further hold that the appellant is entitled to 100% depreciation under the provisions of Rule 3 (5) as the admittedly user of JCB machines in question is for 40 quar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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