2014 (7) TMI 441 - AT - Central Excise

CENVAT Credit - assessee not maintained separate accounts in respect of inputs for the generation of electricity consumption of electricity in factory as well as sold outside - Option given under Section 73 of the Finance Act, 2010 for proportionate reversal of credit - Held that - Considering the facts of the case and the letter dated 03.01.2011 of the Commissioner Raipur wherein he has accepted the assessee s Option under Section 73 of the Finance Act, 2010 on assessee s paying Cenvat credit attributable to the inputs consumed in production of electricity wheeled out by the assessee along with interest, I hold that the dispute has been resolved in terms of Section 73 of the Finance Act, 2010 and that the present appeal therefore needs no further deliberations. - Decided against Revenue.

Summary

Issues:
- Appeal against Order-in-Appeal No. 22-CE/RPR/APPL-I dated 20.12.2006
- Contravention of Rule 6 of the Cenvat Credit Rules, 2002
- Maintenance of separate accounts for inputs used in electricity generation
- Demand of &8377; 41,24,340/- along with interest and penalty of &8377; 10,00,000/-
- Commissioner (Appeals) setting aside the Order of the adjudicating authority
- Applicability of Rule 6 to electricity generated and sold outside
- Dispute resolution under Section 73 of the Finance Act, 2010

Analysis:
1. The case involved an appeal by the revenue against Order-in-Appeal No. 22-CE/RPR/APPL-I dated 20.12.2006, where the Commissioner (Appeals) set aside the order passed by the Adjudicating Authority confirming a demand of &8377; 41,24,340/- along with interest and penalty of &8377; 10,00,000/-.
2. The respondents, manufacturers of goods under heading 72, were using electricity generated within their factory premises for production. They availed Cenvat credit of duty paid on inputs used for electricity generation.
3. A show cause notice was issued for contravention of Rule 6 of the Cenvat Credit Rules, 2002, as separate accounts were not maintained for inputs used in generating electricity consumed within the factory and sold outside. The Department demanded payment due to lack of separate accounts.
4. The Commissioner (Appeals) set aside the Adjudicating Authority's order, stating that Rule 6 does not apply to electricity sold outside, as it must first be excisable to be exempted. The respondents had reversed the Cenvat credit in proportion to the electricity sold outside.
5. The Department disagreed, arguing that once Cenvat credit was availed, all provisions applied, and electricity was excisable. References were made to previous judgments establishing electricity as excisable goods.
6. The Respondent's Counsel argued that the dispute was resolved by filing an application under Section 73 of the Finance Act, which was accepted by the Commissioner, resulting in the reversal of Cenvat credit.
7. Both parties agreed that the dispute was resolved, with the Commissioner accepting the assessee's option under Section 73 of the Finance Act.
8. The Judge held that the dispute was resolved as per Section 73 of the Finance Act, 2010, based on the Commissioner's acceptance of the assessee's application, and further deliberations were unnecessary.
9. The Revenue's appeal and the Respondent's Cross Objections were disposed of accordingly, considering the resolution under Section 73 of the Finance Act, 2010.