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TMI Blog2024 (12) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... the excess electricity cleared at the contractual rates in favour of joint ventures, vendors etc., which is sold at a price.' In the present case, it is observed that appellant has reversed an amount of Rs. 44,05,397/- which has been appropriated by the Original Authority, this reversal was made even prior to issuance of show cause notice. If this reversal was the actual reversal was to be made in terms of Rule 6 (3) of the Rules and in view of the decision of Hon ble Supreme Court in the case of M/s Maruti Suzuki Ltd. then there could have been no case for imposition of penalty. The impugned order do not record anything with regard to correctness of this amount as it confirms the demand by application of 6% of the value of the electricity wheeled out. In case for ascertaining the credit amount that was to be reversed by the appellant. The matter is being remanded to the Original Authority in case the amount is within the amount already reversed, the proceedings should be closed without any final liabilities. Appellant has raised various issues which are not considered for the reason that the issue is squarely covered by the decision of Hon ble Supreme Court referred above. Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,28,934/- without discharging their liability amounting to Rs. 2,89,69,736/-. Out of this the party have reversed total of Rs.44,05,397/-. Thus the balance amount of Rs.2,45,64,339/- (Rs. Two Crore Forty Five Lakh Sixty Four thousand Three Hundred Thirty Nine only) has not been paid by them. Thus appellant violated the provisions as contained in Rule 4,6 and 9 of the Cenvat Credit Rules, 2004. 2.5 A show cause notice dated 29.04.2016 was issued to the appellant asking them to show cause as to why- 3.1 Amount of Rs.2,89,69,736/- (Rs. Two Crore Eighty Nine Lakh Sixty Nine thousand Seven Hundred Thirty Six only) should not be demanded and recovered from them under proviso to Section 11A(4) of the Central Excise Act, 1944 read with Rule 14 of Cenvat Credit Rules 2004. The party are also required to show cause as to why an amount of Rs. 44,05,397/- deposited/ reversed by the party, should not be adjusted/ appropriated against the said demand. 3.2 Interest should not be charged from the party under section 11AA, of the Central Excise Act, 1944, read with Rule 14 of the Cenvat Credit Rules, 2004 on the amount demanded. 3.3 The penalty should not be imposed upon the party under section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issible for CENVAT credit as such wheeled out electricity, cleared for a price, would not fall within the definition of input in Rule 2(g) of the CENVAT Credit Rules, 2002. This view is also expressed in para 9 of the judgment of this Court in the case of Collector of Central Excise v. Solaris Chemtech Limited - 2007 (214) E.L.T. 481 (S.C.). Further, our view is supported by the observations of this Court in the case of Vikram Cement v. Commnr. of Central Excise, Indore - 2006 (194) E.L.T. 3 (S.C.) which is quoted below :- It appears to us on a plain reading of the clause that the phrase within the factory of production means only such generation of electricity or steam which is used within the factory would qualify as an immediate product. The utilization of inputs in the generation of steam or electricity not being qualified by the phrase within the factory of production could be outside the factory. Therefore, whatever goes into generation of electricity or steam which is used within the factory would be an input for the purposes of obtaining credit on the duty payable thereon. 20. To sum up, we hold that the definition of input brings within its fold, inputs used for generation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame to the jurisdictional superintendent in writing vide letter dated 14-3-2012. From the perusal of the said letter, we observed that the appellant categorically stated in the said letter that payment of Cenvat Credit, which they have made alongwith interest is in accordance with Rule 6 (3A) of Cenvat Credit Rules. With this act of the appellant, it is clear that the appellant opted for the option as provided under Rule 6(3)(ii) of the Cenvat Credit Rules, 2004, in accordance to which, the appellant are supposed to an amount equivalent to Cenvat Credit on input service attributed to the exempted service in terms of Rue 6(3A). In the present case, the appellant has availed Cenvat credit in respect of common input services, which has been used in relation to the manufacture of the final product as well as for trading of bought out cars. Therefore they are supposed to pay an amount equivalent to Cenvat credit which is attributed to the input service used for exempted service i.e. sale of car. In our view, three options have been provided under Rule 6(3) and it is up to the assessee that which option has to be availed. Revenue could not insist the appellant to avail a particular optio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption thereunder for the petitioner, viz., to pay 5%/6% of the value of the exempted services. The statutory scheme did not vest the second respondent with the power of making such a choice on behalf of the petitioner. The Order-in-Original, to the extent that it proceeded on these lines, therefore cannot be countenanced. 4.5 In the present case, we observe that appellant has reversed an amount of Rs. 44,05,397/- which has been appropriated by the Original Authority, this reversal was made even prior to issuance of show cause notice. If this reversal was the actual reversal was to be made in terms of Rule 6 (3) of the Rules and in view of the decision of Hon ble Supreme Court in the case of M/s Maruti Suzuki Ltd. (supra) then there could have been no case for imposition of penalty. 4.6 However, impugned order do not record anything with regard to correctness of this amount as it confirms the demand by application of 6% of the value of the electricity wheeled out. In case for ascertaining the credit amount that was to be reversed by the appellant. The matter is being remanded to the Original Authority in case the amount is within the amount already reversed, the proceedings should b ..... 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