2006 (1) TMI 395 - AT - Central Excise

Summary

Issues:
Denial of Modvat credit on capital goods used for electricity generation due to selling excess electricity outside.

Analysis:
1. The appeal stemmed from an Order-in-Original confirming demands by denying Modvat credit on capital goods used for electricity generation, part of which was sold to AP Transco. The main issue was whether denying Modvat credit solely because part of the electricity generated was sold outside is justified.

2. The appellant's counsel argued that various Tribunal rulings, including Supreme Court judgments, supported the appellant's position. They contended that Modvat credit cannot be denied based on the sale of excess electricity outside. The counsel also highlighted that the demands were time-barred, as the show cause notice was issued after a significant period.

3. The Revenue, represented by the SDR, supported the Commissioner's decision to reject the Modvat credit claim. The contention was that since part of the generated electricity was sold outside to A.P. Transco Grid, the credit was not eligible.

4. Upon careful consideration, the Tribunal found that previous judgments, such as CCE v. HEG Ltd. and CCE v. Gujarat Narmada Fertilizers Ltd., supported the appellant's position. These judgments established that simply using capital goods for electricity generation, which is not excisable, does not justify denying Modvat credit. The Tribunal emphasized that the sale of excess electricity outside should not impact the eligibility for Modvat credit.

5. Regarding the time bar issue, the Tribunal noted that the show cause notice was issued after a considerable period, from 14-7-1999 to 1-4-2004. Since all details were provided to the department without any intention to suppress facts, the Tribunal agreed with the appellant that the larger period invoked by the Revenue was not valid. Consequently, the appeal was allowed on both merit and time bar grounds.

In conclusion, the Tribunal ruled in favor of the appellant, emphasizing that denying Modvat credit on capital goods used for electricity generation, based on the sale of excess electricity outside, was not justified. The Tribunal also upheld the appellant's argument regarding the time bar issue, ultimately allowing the appeal on both grounds.