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TMI Blog2017 (3) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... d facts had not been verified. No doubt the onus lies on the department to establish that the waste and scrap did arise out of the capital goods on which credit availed, but, in the present case, the evidences adduced by the appellant in establishing the fact no CENVAT credit had been availed on such M. S. Angles, Channels, Beams, Nut Bolts etc., used in the repair and maintenance of the worn out parts of the plant and machinery, and the worn out parts were cleared as waste and scrap, needs to be verified, before confirming the duty on transaction value of waste and scrap under Rule 3(5A) of CCR,2004 - appeal allowed by way of remand. - E/617/2009 - A/10476/2017 - Dated:- 28-2-2017 - Dr. D. M. Misra, Member (Judicial) For Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waste and scrap arising out of the capital goods installed in their factory on which CENVAT credit had been availed from time to time. It is his contention that the factory of the appellant has been inoperation since 1962 and the plant and machinery installed required periodical overhauling and repairing. In the process of repairing of the plant and machinery, the worn out parts are replaced/repaired and the discarded parts are sold as waste and scrap. It is his contention that during the period 1988-1989 to 2006-2007, they have received M.S. Angles, Channels, Beams, Nut Bolts etc. of 3333 MT(approx.) and used in the repair and maintenance of the plant and machinery. He has vehemently argued that the waste and scrap cleared from their fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent that the demand is thus barred by limitation. 5. Per contra, the Ld. AR for the Revenue submitted that in view of the specific provision inserted w.e.f 16.06.2005 as Rule 3(5A) in CCR, 2004, waste and scrap of capital goods are liable to duty on the transaction value of such waste and scrap. In the present case, the appellant had failed to discharge duty on the transaction value of the waste and scrap as per the said provision, therefore, the notice was rightly issued and confirmed for recovery of the duty on the value of waste and scrap arisen out of capital goods on which the CENVAT credit had been availed earlier. It is his contention that the appellant had not adduced any evidence before the Adjudicating Authority or before the L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch reads as follows:- 3(5A) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. 7. A plain reading of the said provision makes it clear that waste and scrap of capital goods on which CENVAT credit has been availed, if cleared from the factory then the manufacturer shall pay an amount equal to the duty leviable on the transaction value of the waste and scrap. The said rule would come into play only when the capital goods credit had been availed by the assessee and later waste and scrap arose out of the said capital goods. In the present case the claim of the appellant which is raised for the first time before this forum is that during the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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