2008 (12) TMI 456

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....nt. Shri B.S. Suhag, DR, for the Respondent. [Order per : M. Veeraiyan, Member (T)]. - This is an appeal against the order of the Commissioner (Appeals) No. 317-CE/BPL/2004, dated 29-9-04. 2. Heard both sides. 3. The appellant is a manufacturer of cement. They brought certain capital goods and took Modvat credit of duty paid on them and used the capital goods for considera....

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.... also not permissible as during the relevant period (1-4-01 to 2002) there was no provisions similar to the Rule 57S(2)(C) or rule similar to Rule 3(5A) of Cenvat Credit Rules which was with effect from 16-5-05. He also relies on the decision of the Tribunal in the case of Kissan Co-op. Sugar Factory Ltd. v. C.C.E., Meerut-II - 2008 (226) E.L.T. 196 (Tri.-Del.) wherein it has been held that waste ....

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....ad availed Modvat credit on the capital goods and at the time of purchase of the machine is wrong and incorrect." 6.2 The relevant portion of the Commissioner (Appeals) order upholding the order of the original authority is reproduced below : "5. From the submission made by the appellant it is evident that they had availed Modvat credit on the obsolete/outlived machineries when the....

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....e and purchase, and therefore, they meet the criteria for manufacture of excisable goods, hence, chargeable to excise duty. Accordingly, duty on such waste and scrap is payable. 6.3 We find that both the authorities have gone on the lines that the discarding of used capital goods will amount to manufacture of excisable goods. We are not able to appreciate the rational behind the said decis....