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TMI Blog2016 (11) TMI 1218X X X X Extracts X X X X X X X X Extracts X X X X ..... services without maintaining separate accounts, though the electricity generated from the power plant was sold and supplied outside, and therefore, were eligible to take only proportionate credit. In view thereof, on merits, the issue stands answered in favour of the revenue. Period of limitation - Held that: - The appellants have filed E.R 1 returns regularly disclosing the credit availed by them. When all details relating to the availment of credit are available with the department, the allegation that full facts were not furnished in the documents and that respondent suppressed facts is factually incorrect. In a number of decisions, the Tribunal and courts has held that there should be conscious or deliberate withholding of informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. and M/s. A.P. Power Distribution Company Ltd. The total Electricity generation for the year 2010-11 was 12107500 units out of which the assessee sold 9622581 units outside and 2484919 units were used for captive consumption. Similarly, for the year 2011-12, the unit generated 1,39,97,700 electricity out of which the assessee sold 1,14,04,678 units outside and 2593022 units were used for captive consumption. Therefore, the percentage of captive consumption and sold outside for commercial purpose for the entire period was in ratio of 19.45 : 80.55 2. A show cause notice dated 08-10-2012 was issued for the period July, 2008 to July, 2011 for an amount of ₹ 36,99,038/-along with interest and also for imposition of penalties alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts as they failed to disclose the details of availment of Cenvat credit. But for the scrutiny of records, by department Officers, the fact of irregular availment of credit on input services used in power generation which in turn is sold outside would not have come to light. 5. On behalf of the respondent, the Ld. Counsel Shri B. Venugopal defended the findings in the impugned order. He submitted that the appellant is eligible for credit and relied upon the decisions laid in JSW Steel coated products ltd. Vs CCE Thane 2016 (43) STR-280 (Tri.Mum). He also submitted that the appellant had disclosed necessary details by filing ER 1 returns and therefore, the show cause notice issued invoking extended period of limitation is unsustainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any services used by a manufacturer whether directly or indirectly in or in relation to the manufacture of final products and clearance of final products upto the place of removal would be eligible for credit. The input services used for setting up of captive power plant, of which the electricity generated is not exclusively used for manufacture of final products cannot be said to be covered by the definition. The judgment relied by the Ld. Counsel for the respondent, laid in the case of M/s JSW Steel Coated products ltd. (supra) will not assist the respondents. In the said case, the assessee was availing only proportionate credit on input services. The relevant portion of the judgment is reproduced as under: 5.2 It has been all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our view, assessee was not entitled to CENVAT credit. In short, assessee is entitled to credit on the eligible inputs utilized in the generation of electricity to the extent to which they are using the produced electricity within their factory (for captive consumption). They are not entitled to CENVAT credit to the extent of the excess electricity cleared at the contractual rates in favour of joint ventures, vendors etc., which is sold at a price. The Cenvat rules are common for both the inputs and for input services. Thus, what the Hon ble Supreme Court has held in case of inputs will apply to the input services as well. In the instant case they have infact not availed entire credit but only the credit which is admissible to them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, were eligible to take only proportionate credit. In view thereof, on merits, the issue stands answered in favour of the revenue. 11. The Ld. Counsel for respondent has put forward the ground of limitation also. In the impugned order, the Commissioner(Appeals) has discussed that a previous show cause notice was issued to the appellant which would cover the period involved in the present show cause notice also. However, this point was not argued before me by either side. The appellants have filed E.R 1 returns regularly disclosing the credit availed by them. When all details relating to the availment of credit are available with the department, the allegation that full facts were not furnished in the documents and that responde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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