2010 (2) TMI 391

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....ntral Excise Duty under Chapter 39 and 48 of the Central Excise Tariff. They had purchased duty paid capital goods during the period from Oct., 99 to Nov., 03, in respect of which they had taken capital goods Cenvat credit as per the provisions of Cenvat Credit Rules. The total value of the capital goods purchased was Rs. 52,87,448/-, the bulk of the purchases being during Oct., 99 to Dec. 2000 period and total capital Cenvat credit taken was Rs. 8,44,429/-. In Sept., 2004, there was a fire accident in the factory in which there was total loss of plant & machinery as well as of the stock of raw-material and finished goods. The "burnt capital goods" were sold in Feb., 2005 in Rs. 3,30,000/- and at the time of sale, duty amounting to Rs. 60,3....

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....such. The Commissioner (Appeals) vide order-in-appeal No. 116-CE/Noida/2007 dated 16-10-07 set aside the adjudication order and allowed the appeal. It is against this order that the Revenue has come in appeal before the Tribunal and the Respondent have filed the Cross Objection. 3. Heard both the sides. 3.1 Shri S.K. Bhaskar, learned DR, pleaded that the goods sold described in the sales invoices as "burnt plant and machinery", which shows that the goods had retained their identity as capital goods; that it is for this reason only that the original adjudicating authority had held that this is a case of removal of the cenvated capital goods as such; that during the period of dispute, as per the provisions of Section 3(5) of Cenvat Cred....

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....s could not be said to be a case where cenvated capital goods have been removed as such and that he relies upon the Tribunal's judgment in the case of CCE v. Geeta Industries reported in 2009 (249) E.L.T. 99 wherein the Tribunal had upheld the payment of duty on transaction value in the case where the cenvated capital goods are sold after some use. He pleaded that the sale of the burnt plant and machinery was a bona fide sale and no amount over and above that mentioned in the invoice had been received by the Respondent and in view of this, duty had been correctly paid. 4. I have carefully considered the submissions from both the sides and perused the records. The capital goods namely D.G.Sets, BST Sayona Pneoumo Line/edge web guiding sys....