9911796707
TMI Blog2024 (6) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer excess power of 3.5 MW into DTA subject to the Input-Output Norms as recommended by the Central Electricity Authority. In absence of any diversion of the furnace oil and solely on the ground of less generation of electricity from the quantity of furnace oil consumed, the demand cannot be sustained. The impugned order is set aside - appeal is allowed. - HON'BLE DR. D. M. MISRA , MEMBER ( JUDICIAL ) And HON'BLE MRS R BHAGYA DEVI , MEMBER ( TECHNICAL ) Mr. N. Anand and Mr. Ravi Shankar , Advocates , for the Appellant Mr. H. Jayathirtha , Superintendent ( AR ) , for the Respondent ORDER PER : DR. D. M. MISRA This is an appeal filed against Order-in-Appeal No.162/2011 dated 29.11.2011 passed by the Commissioner of Central Excise( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said Input-Output Norm, it was alleged that by using the quantity of furnace oil, the appellant should have produced 4,16,42,068 units of electricity during 2004-05 and 3,02,87,027 during 2005-06 whereas the actual electricity generated for the respective years was 3,58,08,288 units and 2,67,09,025 units resulting shortfall of 94,11,782 units of electricity for both these years and for generation of the said quantity of electricity, 18,39,062 kgs. of furnace oil would have been used. He has submitted that being a 100% EOU, they have achieved Net Foreign Exchange (NFE) criteria and fulfilled their export obligation. The appellant has used the furnace oil for generation of electricity only and part of the electricity generated was transferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that after 3 years from the date of communication of the audit report, the demand notice has been issued; hence the same is barred by limitation as there is no suppression of facts with intent to evade payment of duty and all the transactions have been duly recorded in the books of accounts and reflected in the periodical returns. In support, they referred to the judgment of Hon ble Supreme Court in the case of Cosmic Dye Chemical Vs. CCE [1995(75) ELT 721 (SC)] and in Continental Foundation Joint Venture Vs. CCE [2007(216) ELT 177 (SC)]; also the imposition of penalty is unwarranted. 5. Learned AR for the Revenue reiterated the findings of the learned Commissioner(Appeals). 6. Heard both sides and perused the records. 7. The short issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board of Approval ; (ii) to transfer such surplus power to other export oriented undertaking or Software Technology Park (STP) unit or Electronic Hardware Technology Park (EHTP) unit or unit in special economic zone without payment of duty : Provided that both supplying and receiving unit shall maintain account for the quantity of consumables and raw materials used in generation of each unit of power so transferred as quantified on the basis of norms approved by the Board of Approval, for the purpose of calculation of Net Foreign Exchange Earning (NFE). 8. Admittedly, the appellant was granted permission for generation of power with an annual capacity of 6.2 MW by the Development Commissioner of CSEZ; also granted permission to transfer ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such wastage in excess of Input-Output norms, without any evidence of removal, duty on inputs cannot be demanded. The observation of Hon ble High Court at para 20 reads as follows:- 20. This Court is of the view that the mere fact that the wastage is in excess of the input-output norms, without anything more, would not be sufficient for the Assistant Collector to arrive at the satisfaction that the imported fabric has not been used for the manufacture of the articles for export. Condition No. 6 of the Notification No. 13/Customs, dated 9-2-1981, cannot be read in a manner whereby despite the fact that the assessee is in a position to show that the entire material has been used for the purpose of manufacture of goods and there is no alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby despite the fact that the assessee was in a position to show that the entire material had been used for the purpose of manufacture of goods and there was no allegation with regard to diversion of goods, merely because the wastage norms were not satisfied, the Assistant Collector of Customs could record satisfaction to the effect that the goods had not been used for the manufacture of articles for export. 11. In absence of any diversion of the furnace oil and solely on the ground of less generation of electricity from the quantity of furnace oil consumed, the demand cannot be sustained. In the result, the impugned order is set aside and the appeal is allowed with consequential relief, if any, as per law. ( Operative part of this Order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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