2004 (6) TMI 499 - AT - Central Excise

Summary

Issues: Modvat credit disallowance on capital goods due to electricity usage outside the factory.

Analysis:
The case involves the disallowance of Modvat credit amounting to Rs. 3,65,725/- on capital goods for the period September 1997 to February 1998. The disallowance was based on the argument that the electricity generated using the capital goods was not entirely consumed within the factory of production of final products. Despite no representation for the appellants, the application for waiver of pre-deposit and stay of recovery was considered for final disposal due to the straightforward nature of the issue at hand.

Upon examining the records and hearing the DR, who opposed the application, it was noted that the capital goods in question were eligible for Modvat credit under Rule 57Q of the Central Excise Rules, 1944 for a specific period. The demand against the party was based on the omission of the second proviso to Rule 57R (2) with effect from a certain date. The Commissioner (Appeals) held that eligibility for credit under the proviso required exclusive use of electricity within the factory, a view that was challenged. It was argued that the proviso did not explicitly mandate exclusive use within the factory, and the interpretation by the Commissioner was deemed incorrect.

The Tribunal observed that a portion of the electricity generated using the capital goods was indeed used within the factory, while the excess was sold to the State Electricity Board for public use. The disposal of surplus electricity for public benefit was considered valid, and penalizing the assessee for this action by denying Modvat credit was deemed unjust. The Tribunal found that the party had established a strong prima facie case, leading to the grant of waiver of pre-deposit and stay of recovery concerning the disputed duty amount.