9911796707
TMI Blog2018 (12) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... esent case and therefore the demand under Rule 6(1), (2) and (3) of CCR are not applicable. Board has also clarified the issue vide instruction dt. 23/12/2013 wherein it has been opined that in the case of manufacture of non-excisable goods, Rule 6 would not attract - also, in the case of UOI Vs. DSCL Sugar Ltd. [2015 (10) TMI 566 - SUPREME COURT], the Hon'ble Supreme Court has held that Bagasse is not excisable goods, there being no manufacturing process, hence Rule 6 of CCR is not applicable. Appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... n or in relation to manufacture of the dutiable final products and hence the condition for availing credit has been fulfilled. The use of waste heat for generation of steam does not amount to use of common input and the appellants have not taken CENVAT credit on any input or input services used for generation of electricity. The Audit Party, Belgaum Commissionerate audited the records of the assessee and issued Audit Report dt. 07/04/2011 and dt. 2/2012 observing that the assessee had not paid 5/6% of the value of electricity sold. As per the audit party, the assessee was availing CENVAT credit on GTA service, Security Services, Testing and analysis service, stevedoring service, manpower supply etc. and consequently Rule 6 of CENVAT Credit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order, appellant filed appeal before the Commissioner (Appeals) who rejected the same. 3. Heard both sides and perused records. 4.1. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same is contrary to the facts and the law. He further submitted that this issue is no more res integra and has been settled by various decisions of the Tribunal, High Courts and Supreme Court wherein it has been held that electricity being non-excisable goods is not exempted goods and therefore the provisions of Rule 6 of CCR are not applicable. He further submitted that the electricity is listed against CHH 2716 0000, but no tariff rate of duty is specified. The electricity is not being subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CL sugar Ltd, [2015(322) ELT 769 (SC)] has held that Rule 6 of the CCR, 2004 is applicable only to excisable goods and the demand of an amount equal to 6% of the value of electricity cleared by the assessee to power generation agency in terms of Rule 6(3)(i) of the CCR 2004 is not sustainable and dropped the proceedings and the said order has become final. He further submitted that the sow-cause notices in the present case have demanded an amount equal fo 5% / 6% of the value of electricity sold, there cannot be any basis to disallow and demand CENVAT credit on common inputs and input services proportionate to the quantity of electricity sold to GESCOM as such demand would be beyond the scope and basis of the show-cause notices. He further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CCR will not be applicable and therefore the demand of 6% of the value of electricity cleared by the assessee to power generation agency is not sustainable in law. Further I find that in the case of UOI Vs. DSCL Sugar Ltd., the Hon'ble Supreme Court has held that Bagasse is not excisable goods, there being no manufacturing process, hence Rule 6 of CCR is not applicable. In view of the settled legal position decided in various decisions cited supra, I am of the considered view that the impugned order is not sustainable in law and therefore I set aside the impugned order by allowing all the 4 appeals with consequential relief, if any.
(Operative portion of the Order was pronounced in open Court on 29/11/2018) X X X X Extracts X X X X X X X X Extracts X X X X
|
