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TMI Blog2022 (6) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... ar power, hydro power, wind power or from bagasse. Therefore, we are of the view that electrical energy is not an excisable goods nor it is exempted goods as defined in Rule 2 (d) of the 2004 Rules. In the present case, Cenvat credit has been taken on the inputs used, however, suo moto proportionately reversed for the electricity which has been sold out. Further, it is observed that the Rule 6 of CCR, 2004 gives three separate options to the assessee as mentioned under sub rule (1), (2) and (3) thereof and to exercise any one of these options is the prerogative of assessee. The department cannot compel the assessee to opt for a particular option. Further, w.e.f. 01.04.2008 Rule 6 (3A) has been introduced, according to which the assessee is eligible to reverse proportionate credit on inputs and input services used in manufacture of exempted goods. Invocation of Extended period of Limitation - HELD THAT:- There is no denial for the fact that similar show cause notices have already been served upon the appellants for the previous years. Suppression of facts in those circumstances cannot be alleged - it is held that invocation of extended period of limitation has also been wro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n specified against electricity in the said Tariff Act. Hence, the condition for being excisable goods remains unfulfilled with respect to the electricity. The findings of Commissioner (Appeals) holding electricity as an excisable goods is contrary to the definition of excisable goods in Section 2 (d) of Central Excise Act, 1944. It is further mentioned that even the definition of final products in Rule (h) of CCR, 2004, the goods manufactured have to be the excisable goods. The electricity is accordingly, not even the final product. The findings of the Commissioner (Appeals) to that extent are also liable to be set aside. Learned (Counsel) has relied upon the decision of this Tribunal in the case of DSM Sugar Mills Limited Vs. Commissioner of Central Excise, Meerut I, reported as 2014 (304) ELT 582 (Tri.-Del). 2.1 Learned Counsel has further mentioned that 92% of electricity generated by them is being captively used in their sponge iron plant for manufacture of dutiable final products. It is balance 8% of the electricity that is wheeled out to state electricity company for the reason that electricity cannot be stored for future use. However, for the said 8% sale the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, Madras and even the decision of this Tribunal. Impressing upon no infirmity in the order under challenge, appeal is prayed to be dismissed. 4. After hearing the rival contentions, perusing the entire records, the considered opinion of mine is as follows: The moot controversy to be adjudicated in the present case appears to be: Whether for the electricity generated by the appellants for captive consumption, some part whereof has been sold to state electricity body, the appellants are not liable to take the credit on such amount of electricity as has been sold out. It is observed that there is no denial to the following facts: (i) The electricity is generated in a different plant though located in the same premises where the final products as that of ingots, billets etc. are being manufactured. (ii) Appellants are discharging his duty liability with respect to clearance of his final products. (iii) The appellants have suo moto reversed the Cenvat credit taken on input and input services used for production of that portion of electricity that has been wheeled out to State Electricity Company amounting to Rs.10,19,252/-. (iv) The impugned demand has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant to mention here that Rule 6(1) provides that Cenvat credit shall not allow on such quantity of inputs which is used in the manufacture of exempted goods. For applicability of Rule 2, the following ingredients must exist:- (i) where a manufacturer avails Cenvat crdit on any input (as defined in Section 2(k) (ii) and manufactures such final products which are chargeable to duty and (iii) also manufactures such final products which are exempted goods. 28. Hence, manufacture is referred to both dutiable/excisable goods and exempted goods, which are final products. Only then, it is necessary for the manufacturer to maintain separate accounts. Rule 6 of the Cenvat Credit Rules, 2004. 6. In the present case, Cenvat credit has been taken on the inputs used, however, suo moto proportionately reversed for the electricity which has been sold out. Further, I observe the Rule 6 of CCR, 2004 gives three separate options to the assessee as mentioned under sub rule (1), (2) and (3) thereof and to exercise any one of these options is the prerogative of assessee. The department cannot compel the assessee to opt for a particular option. Further, w.e.f. 01.04.2008 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X
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