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TMI Blog2017 (11) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... eared 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. - Central Excise Appeal No.1377 of 2011-SM - A/12956/2017 - Dated:- 11-10-2017 - Dr. D. M. Misra, Member (Judicial) Shri Shri J.C. Patel, Advocate Patel with Shri Rahul Gajera, Advocate for the Appellant Shri Sameer Chitkara, A.R. for the Respondent-Revenue ORDER Per: Dr. D.M. Misra This is an appeal filed against OIA No.BC/298/SURAT/2011 dated 20.10.2011 passed by the Commissioner (Appeals II), Central Excise, Customs Service Tax, Surat II. 2. Briefly stated the facts of the case are that the appellants are engaged in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscarded parts are sold as waste and scrap. He has vehemently argued that the waste and scrap cleared from their factory were the result of worn out parts/machines procured in 1992-93 on which no CENVAT credit as capital goods had been availed by them. It is his contention that before applying the provisions of amended Rule 3 (5A) of CCR, 2004, the onus lies on the department to show that the waste and scrap, which were cleared arose out of capital goods on which CENVAT credit had been availed. In support of his contention, the Ld. Advocate referred to the decisions of this Tribunal in the case of Mangalam Cement Ltd. Vs. Commissioner of Central Excise, Jaipur - 2016 (338) ELT 145 (Tri.-Del.), Karnal Co-Operative Sugar Mills Ltd vs. Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich CENVAT credit had been availed.; the certificate now produced for the first time before this Tribunal, since not scrutinized by the department cannot be accepted. The Ld. AR further submitted that in view of the judgement of Hon'ble Gujarat High Court in the case of GNFC Ltd Vs. Union of India - 2007 (214) ELT 18 (Guj.) waste and scrap of capital goods under Rule 57-S(2)(c) erstwhile Central Excise Rules,1944, held to be dutiable. The Ld. AR further contended that since the appellant did not bring out any evidence that the waste and scrap not generated out of capital goods on which CENVAT credit had been availed earlier, therefore, merely reflecting the figures of clearance of the same in their balance sheet cannot support thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 as was in existence at the relevant time, in my opinion, it is relevant to ascertain first whether CENVAT Credit had been availed on the capital goods, which had become later scrap. In the present case though the appellant has been vehemently arguing that they had received capital goods priot 1994 and the worn machines/parts were removed as waste and scrap, the said 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 plant and machinery, cleared as waste and scrap, needs to be verified, before con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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