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2014 (7) TMI 531 - AT - Central ExciseCENVAT Credit - Credit in respect of generation of electricity - appellant have availed the cenvat credit in respect of various input services used in or in relation to the generation of electricity and also in respect of inputs such as lubricants, grease, chemicals, etc. used in or in relation to the generation of electricity and since separate account and inventory of the inputs/input services meant for dutiable final products and exempted final products have not been maintained - Held that:- electricity is not an excisable good and hence, in respect of the sale of the electricity to U.P. Power Corporation Ltd., the provisions of Rule 6(3) of the Cenvat Credit Rules would not be applicable. In view of judgment of the Gularia Chini Mils, Gularia & Ors. Vs. Union of India [2013 (7) TMI 159 - ALLAHABAD HIGH COURT], the impugned order demanding the amount under Rule 6(3) of the Cenvat Credit Rules, 2004 would not be sustainable. There may have been a case for denial of proportionate credit in respect of the cenvated inputs or input services to the extent the same have been used in or in relation to the generation of power sold to U.P. Power Corporation Ltd., but the show cause notice is silent on this point. It does not even mention as to which common input or input service were being used and if so, how much is the cenvat credit taken - appellant, therefore, have strong prima facie case in their favour. The requirement of pre-deposit of cenvat credit demand under Rule 6(3) of the Cenvat Credit Rules, 2004, interest thereon and penalty is, therefore, waived for hearing of their appeal and recovery thereof is stayed - Stay granted.
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