TMI Blog2012 (5) TMI 170X X X X Extracts X X X X X X X X Extracts X X X X ..... ides. 2. Applicant filed this application for waiver of pre-deposit of duty of Rs.2,96,66,481/-, interest and penalty. 3. Out of above mentioned amount of duty demand of Rs.2,88,97,841/- is confirmed after denying credit in respect of the capital goods which are used in the captive power plant on the ground that part of electricity generated is sold outside the factory. The demand of Rs.7,68,640/- is confirmed in respect of the goods on the ground the same are not capital goods. 4. The contention is that the Revenue wrongly denied the credit in respect of the capital goods which are used in the captive power plant for generation of electricity as the major portion of electricity so generated is used in or in relation to the manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit on the capital goods used in the power plant for generation of electricity. In respect of the other demand, the contention is that the items in question are not capital goods. Therefore, the credit is rightly denied. 7. We find that the admitted facts of the case are that credit has been availed on the capital goods which are used in the captive power plant and the electricity so generated in the power plant is used in or in relation to the manufacture of finished goods and certain quantity of electricity so generated sold outside factory. The Revenue is relied upon Rule 6(4) of the CENVAT Credit Rules for ready reference on the provisions of rule which is reproduced below:- "6(4):- No CENVAT credit shall be allowed on capital goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of the provisions of Rule 6(4) of the CENVAT Credit Rules, we find prima facie the applicants have made a strong case in their favour for waiver of pre-deposit of duty in respect of capital goods. 9. In respect of the remaining amount of Rs.7,68,640/- which is denied on the items on the ground that the same are not capital goods. The applicant had already reversed the amount of Rs.3,01,440/- along with interest. Keeping in view facts and circumstances of the case, the deposit already made is sufficient for hearing of the appeal on this issue also. In view of the above, the pre-deposit of duty, interest and penalty is waived for hearing of the appeal and recovery of the same is stayed during the pendency of the appeal. The stay peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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