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TMI Blog2016 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... d only on the premises that Bagasse attracts Excise duty and consequently Rule 6 of Cenvat Credit is applicable and the Hon'ble Supreme Court has found such action to be erroneous. Therefore, by following the same the impugned orders are set aside. - Decided in favour of appellant - Appeal Nos. E/2665/2012, 59654/2013 & 50527/2014-EX[DB] - Final Order No. 70710-70712/2016 - Dated:- 4-8-2016 - Mr. Anil Choudhary, Member (Judicial) And Mr. Anil G. Shakkarwar, Member (Technical) Shri Kapil Vaish, C. A., for the Appellant Shri Rajeeve Ranjan , Joint Commr. (A.R.), for the Department ORDER Per Mr. Anil G. Shakkarwar These three appeals are being taken up together for decision for the reason that all the three are related ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering period from April, 2009 to March, 2011, contending that electricity was generated out of Bagasse and electricity was sold to State Grid of Electricity for consideration and under Rule 6(3) ibid amount as provided by said Rule, needs to be recovered on the consideration received on sale of such electricity. So, through the said three Show Cause Notices, an amount of ₹ 47,11,947/- was demanded under Rule 6(3) of Cenvat Credit Rules, 2004. The said three Show Cause Notices were adjudicated through Order-in-Original dated 17-10-2012, wherein the said amount was confirmed and equal penalty was imposed. 4. The appellants have preferred appeal before the Commissioner (Appeals) challenging the said Order-in-Original dated 17-10-2012. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le of Central Excise Tariff Act, 1985 where the electricity has not been provided with any rate of Central Excise duty, electricity is not excisable goods and provisions of Rule 6(3) do not get applied to electricity. 7. The ld. Counsel for the appellant has reiterated the submissions in the grounds of appeal and submitted a copy of the case law in the case of Union of India Vs. DSCL Sugar Ltd. reported at 2015 (322) E.L.T. 769 (S.C.), wherein the Hon'ble Supreme Court of India have held that Bagasse is only an agricultural waste and residue and there cannot be any Excise duty on Bagasse. The Hon'ble Supreme Court has further ruled that Cenvat credit in respect of electricity was denied only on the premises that Bagasse attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in Balrampur Chini Mills Ltd. in C.A. No. 2791 of 2005 decided on 21-7-2010 [2015 (320) E.L.T. A258 (S.C.)]. 6. The aforesaid judgment was pronounced by this Court related to the period before 2008. In the year 2008 there was an amendment in Section 2(d) as well as in Section 2(f) of the Act which defines excisable goods and manufacture respectively. Section 2(d) with the said amendment reads as under : Section 2(d) - excisable goods means goods specified in [The First Schedule and the Second Schedule] to the Central Excise Tariff Act, 1985 (5 of 1986 ) as being subject to a duty of excise and includes salt; Explanation - for the purposes of this clause, goods includes any article, material or substance which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excisable goods, but also any person who engages in their production of manufacture on his own account; 9. The Revenue sought to cover the case under sub-clause (ii) as per which the process which is satisfied in relation to any goods in the Section or Chapter notices of the First Schedule to the Central Excise Tariff Act, 1985 would amount to manufacture . Here again, fiction is created by including those goods as amounting to manufacture in respect of which process is specified in the Section or Chapter notices of the First Schedule. 10. In the present case it could not be pointed out as to whether any process in respect of Bagasse has been specified either in the Section or in the Chapter notice. In the absence thereof this de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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