TMI Blog2014 (7) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, in respect of the electricity sold to U. P. Power Corporation Ltd., the appellant, in accordance with the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004, would be liable to pay an amount @ 5%/10% of the sale value of the electricity. On this basis, a show cause notice dated 8.2.2012 was issued to the appellant for payment of an amount of ₹ 2,56,66,776/- in respect of sale of electricity to U. P. Power Corporation during the period from November, 2007 to November, 2011 along with interest thereon under Section 11 AB and also for imposition of penalty und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stay application. 3. Shri Alok Arora, Advocate, ld. Counsel for the appellant, pleaded that Rule 6(2) of the Cenvat Credit Rules, 2004 read with Rule 6(3) of the Cenvat Credit rules, 2004 is applicable only to a case where a manufacturer using common cenvat credit availed inputs or input services, manufacturers dutiable final products as well as exempted final products and does not maintain separate accounts and inventory in respect of inputs/input services used in or in relation to the manufacture of dutiable final products and exempted final products, that Rule 6(2) read with Rule 6(3) would not be applicable when one of the products being manufactured is non-excisable, that in terms of the definition of excisable goods as given in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be stayed. 4. Ms. S. Bector, ld. Departmental Representative opposed the stay application by reiterating the findings of the Commissioner in the impugned order. She pleaded that this is not a case for waiver from the requirement of pre-deposit. 5. We have considered the submissions from both the sides and perused the records. 6. The basis of the departments case against the appellant is that - (a) they are using common cenvat credit availed inputs and input services for generation of power; (b) while part of the power generated is being used in the sugar mill for manufacture of dutiable final products, the remaining electricity is being sold out to U. P. Power Corporation; (c) electricity is an excisable goods attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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