TaxTMI 
TaxTMI 
2024 (4) TMI 902
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.... 2. Shri Anil Gidwani, Learned counsel appearing on behalf of the appellant at the outset submits that after use of the fire brick on which credit was taken on capital goods became waste and scrap and the same is not usable even as waste and scrap and the same is thrown outside the factory. Excise duty under Rule 3 (5A) of Cenvat Credit Rules, 2004 by calculating the same, deducting 2.5% per quarter is not required to be paid. 2.1 He submits that the appellant have correctly paid the duty on the transaction value. He placed reliance on the judgment in the case of Birla Corporation - 2003 (162) ELT 499 (Tri. Del). 2.2 He submits that though the above decision is in respect of Rule 57 (2) (c) of Central Excise Rules, 1944 but the provision....
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....he amount to be paid shall be equal to the duty leviable on transaction value. (Substituted (w.e.f. 17.03.2012) by Notification No. 18/2012-C.E.(N.T.), dated 17.03.2012. Period from 27.09.2013 onwards : (5) When inputs or capital goods, on which..... Rule 3. Cenvat Credit- (5A) (a) If the capital goods, on which..... (i) for computers and computer peripherals. for capital goods, other than computers........ (b) If the capital goods are cleared as waste and scrap, the manufacturer shall pay an amount equal to the duty leviable on transaction value. Substituted by Notification No. 12/2013-C.E.(N.T.), dated 27.09.2013) 4.1 In view of the above rule though it provides that in case of removal of capital goods as waste and ....
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.... shall be calculated by allowing deduction of 2.5 per cent of credit taken for each quarter of a year of use or fraction thereof, from the date of availing credit under rule 57Q; and (c) where capital goods are sold as waste and scrap, the manufacturer shall pay the duty leviable on such waste and scrap. 4.2 It can be seen that the provisions for payment of duty on waste and scrap of capital goods in both the above rules are almost Pari-Materia, therefore, the decision of Birla Corporation is applicable. The said judgment is reproduced below:- "3. Appellant is engaged in the manufacture of cement. The main machinery employed for manufacture of cement is Kiln. The shell of which is made of steel and in order to protect the Kiln from be....
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....the light of the provisions contained under Rule 57S, duty has to be discharged on these used firebricks. 5. It is contended on behalf of the appellant that in the order impugned, the Commissioner has admitted that after life span is over, firebricks are to be removed from the kiln with the help of hammers, hydraulic and pneumatic jacks. After dismantling, they no longer remain fire bricks but remain as broken, unshaped fire bricks. The finding of the Commissioner that the appellant is bound to pay duty in view of the provisions contained under Rule 57-S(2)(C) is totally unsustainable. The learned counsel placed reliance on two decisions of the Tribunal namely Knit Foulds Pvt. Ltd. v. C.C.E., Chandigarh - 1997 (95) E.L.T. 517 and Orient P....