Home Case Index All Cases Central Excise Central Excise + AT Central Excise - 2023 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (9) TMI 179 - AT - Central ExciseReversal of CENVAT Credit - eligibility to proportionate credit in respect of naphtha used for generation of electricity to the extent such electricity was used for production purposes in the power plant i.e. to run the power plant itself - period April 2006 to January 2011 - suppression of facts or not - extended period of limitation - HELD THAT:- Having regard to the ratio of the judgment of the Hon’ble Supreme Court in M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT], it is indisputable that naphtha used in the power plant to produce electricity which was used in the power plant itself for the production of electricity is an 'inpu' within the meaning of rule 2(k) of the 2004 Rules. As held by the Hon’ble Supreme Court, “electricity generation also forms part of the manufacturing activity and the “input” used in that electricity generation is an “input used in the manufacture” of final product”. Period from April 1, 2008 to January 31, 2011 - HELD THAT:- As held by the Hon'ble Supreme Court in the case of M/S. MARUTI SUZUKI LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, DELHI-III [2009 (8) TMI 14 - SUPREME COURT] and by the Tribunal in Appellant's own case, the naphtha used for generation of electricity, which is consumed within the factory of production is an eligible 'input'. Accordingly, the Appellant is eligible for the Cenvat credit availed on naphtha, which is used for generation of electricity and consumed within the factory of production. Period from April 1, 2006 to March 31, 2008 - HELD THAT:- The impugned order has held that Cenvat credit was not admissible in respect of naphtha used to produce electricity which was used for production purposes in the power plant itself, on a totally different ground. The Commissioner sought to distinguish the reported decision in Appellant's own case HALDIA PETROCHEMICALS LTD. VERSUS COMMISSIONER OF C. EX., HALDIA [2005 (1) TMI 306 - CESTAT, NEW DELHI] on the ground that in the instant case electricity was also sent to the housing colony and Praxair India Ltd. and was also used in the power plant for administrative purposes - It is observed that this was also the case during the period involved in the reported decision. During the earlier period also, the Appellant had reversed the proportionate Cenvat credit in respect of naphtha referable to electricity so used and such use of electricity cannot be a reason for not following the reported decision in Appellant's own case - the grounds raised by the Commissioner in the impugned order to deny the credit availed on naphtha sent for job work for generation of electricity is not tenable. Extended period of Limitation - suppression of facts or not - HELD THAT:- A perusal of the copy of working details relating to reversal of credit for the months of January 2005 and February 2005 submitted by the Appellant to the Superintendent of Central Excise vide letter dated April 28, 2005, indicate that the Appellant has separately given the bifurcation of the quantum of electricity consumed in the power plant for its production operations. Accordingly, the grounds raised in the impugned order for invoking extended period not tenable. As there is no suppression of fact involved and the entire issue was within the knowledge of the department, it is held that the demand confirmed in the impugned order is not sustainable on the ground of limitation also. The demand confirmed in the impugned order is not sustainable and is set aside - appeal allowed on merit as well as on limitation.
|