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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 ..... for 40 quarters - Appeal allowed. - Appeal Nos. E/51969/2015 - Final Order No. A/70166/2016-SM - Dated:- 28-4-2016 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL). Shri S. C. Kamra, Adv. for the Appellant. Shri S. J. Sahu, Asst. Commissioner (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 assessee is required to reverse Cenvat credit on the basis of transaction value under Rule 3 (5A) or req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Rules. Rule 3(5) provides depreciation @ 2.5% for each quarter of user on straight-line basis and multiplied by 40 quarters of user, the depreciation becomes 100% and therefore, no amount of Cenvat is recoverable. Vide OIO dated 16/7/14, the SCN was adjudicated and the proposed demand confirmed along with equal amount of penalty under section 11 AC. Being aggrieved the appellant preferred appeal before 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the cleared/removed JCB machines as waste and scrap on the basis of description in the invoice old and discarded not usable is erroneous in absence of any ground rules for the same. I further hold that the ld. Commissioner (Appeals) have erred in holding the removed JCB as waste and scrap. I further find that the value of new JCB machines at the time of purchase in the year 2000, was about ₹ 20.00 lakhs and the appellants have received ₹ 8.00 lakhs, approx., which is about 40% of the acquisition price. Normally by rule of thumb residuary value of less 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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