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TMI Blog2014 (7) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... ervices used in or in relation to the manufacture of final products. There is a co-generation plant in the appellants factory. To the extent possible, the power generated by the co-generation plant is used in the factory for manufacture of final products and the surplus power, if any, is sold out to the U.P. Power Corporation Ltd. The department was of the view that since the 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... electricity sold out, an amount as specified in Rule 6(3) of the Cenvat Credit Rules, 2004 would be payable, as the appellant have not maintained account and inventory of the goods and services used in or in relation to the manufacture of dutiable and exempted final products. Accordingly, the demand under Rule 6(3) of the Cenvat Credit Rules, 2004 as made in the show cause notice was confirmed against the appellant along with interest and penalty of equal amount was imposed on them. Against this order of the Commissioner this appeal has been filed along with stay application. 2. Heard both the sides in respect of stay application. 3. Shri Alok Arora, Advocate, ld. Counsel for the appellant, pleaded that Rule 6(2) of the Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upper Ganges Sugar & Ind. Ltd., Seohara and Another, M/s. Mankapur Chini Mills and M/s. Akbarpur Chini Mills and Others has held that electricity is not an excisable good and hence, no amount can be charged under Rule 6(3) of the Cenvat Credit Rules, 2004 in respect of the electricity sold by the Sugar Mills to U.P. Power Corporation Ltd., that the ratio of this judgment of the Allahabad High Court is squarely applicable to the facts of this case, that the appellant have strong prima facie case in their favour and hence the requirement of pre-deposit may be waived for hearing of their appeal and recovery thereof may be stayed. 4. Ms. S. Bector, ld. Departmental Representative opposed the stay application by reiterating the findings of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of this judgment of the Hon'ble 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. 7. The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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