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TMI Blog2017 (3) TMI 1071X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 - Ms. Archana Wadhwa, Member (Judicial) Shri Sanjay Grover, Advocate for the Appellants Shri R.K. Mishra, DR for the Respondent ORDER After hearing both the sides, I find that the appellant is engaged in the manufacture of Cement and were availing the benefit of Cenvat Credit of duty paid on various items. They originally took credit on Fire Brick, Cable and Wire, Filter Bas and various Rubber Items. After use the said items become unserviceable, and are cleared by the appellant as waste scrap. 2. Revenue by resorting to the provisions of Rule 3(5A) of Cenvat Credit Rules 2004 entertained the view that waste and scrap cleared by the appellant were liable to discharge duty on the transaction value. 3. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authority. Held accordingly. 6. Ld. Advocate, appearing for the appellant, by drawing my attention to the said findings of the appellate authority, have strongly contended that excise duty can be paid on the transaction value only for the goods being cleared by them which are the result of any manufacture and are excisable and are classifiable under a particular heading. If there is no head covering the said goods in the Central Excise Tariff Act, no rate of duty can be fixed and as such the same cannot be collected. For the above proposition he relies upon various decisions of the Tribunal. 7. After considering the submissions made by the Ld. Advocate as also by Ld. DR, who reiterates the findings of the lower authorities I find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount equal to the duty leviable in my opinion would require classification. Therefore, without classification, rate of duty cannot be indicated. Further, even if it is assumed that capital goods would have already been classified at the time of receipt, the fact remains that at the time of disposing of the same as waste, there can be different types of capital goods and they would have attracted different rates of duty. 8. The above discussion shows that the issue is no more res integra and stands covered by various precedent decisions of the Tribunal. Accordingly, by following the same, I set aside the impugned order and allow the appeal with consequential relief to the appellant. [Dictated and pronounced in the open Court] - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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