TMI Blog2011 (7) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... ell under the notification dated 20-2-2003 - It is clear from the above said clause that EOU unit which has established captive power plant can sell electricity found to be excessive subject to the condition mentioned there on and to sell surplus power in Domestic Tariff Area on payment of amount equal to the duty leviable on consumables and raw materials but for the exemption thereon, used for generation of each unit of power so sold in the domestic Tariff Area on the basis of approval by the Board of Approval - the order passed by the Tribunal is justified and the finding that the respondent is entitled to cenvat credit and the same could not have been recalled, does not suffer form any perversity, arbitrariness - Appeal is dismissed - 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for availing cenvat credit, is perverse and arbitrary? 4. We have heard the learned counsel appearing for the appellant-revenue and the learned counsel appearing for the respondent. 5. Learned counsel appearing for the appellant-revenue submitted that the order passed by the Tribunal holding that amount equal to duty should be considered as duty for availing cenvat credit though cannot be treated as amount paid as duty and wherefore the Tribunal was not justified in forwarding cenvat credit in favour of the respondent. It is contended that show cause notice was issued on 18-2-2005 stating as to why the cenvat credit for the period from May 2004 to November 2005 in Appeal No. 57/2007 and December 2004 to May 2005 should not be dis-all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as payment of duty, it should be treated as payment of duty only as obligation is on the purchaser to make payment of value of raw material which is equalent to duty imposed. The duty leviable is equalent to the cost of raw material duty leviable: Being aggrieved by the said order of the Tribunal, these appeals are filed by the revenue. 6. Learned counsel further submitted that excise duty is payable by the manufacturer of the electricity and the vendor and not by the respondent and wherefore, the respondent could not have availed the cenvat credit under the original authority and the order has been wrongly set aside by the appellate Tribunal and wherefore the finding of the Tribunal is erroneous, perverse and arbitrary and substanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is permitted to sell under the notification dated 20-2-2003 and the material on record would clearly show, before transfer of excess power generated by M/s. Forbes Gokak Limited to the DTA-the respondent, correspondence was made to the Superintendent of Central Excise, Gokak Range, Hospet and the EOU unit was permitted to sell the electricity subject to compliance with para 7 of the notification. The said condition in para 7 of the notification reads as follows : 7. Without prejudice to other provisions of this notification, where the said officer is satisfied that the user industry, which has been permitted by the concerned State Electricity Board in this behalf and has been permitted by Development Commissioner to sell into Domestic T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power in Domestic Tariff Area on payment of amount equal to the duty leviable on consumables and raw materials but for the exemption thereon, used for generation of each unit of power so sold in the domestic Tariff Area on the basis of approval by the Board of Approval. It is not in dispute in the present case that EOU unit is exempted from payment of duty in respect of consumption of electricity manufactured by it. However, when the electricity which his found to be in excess is sold to DTA, the same is subject to the condition that the said sale shall be on payment of amount equal to duty leviable on consumables and raw materials but for the exemption of duty thereon and wherefore it is clear that the payment that has been made as consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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