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TMI Blog2015 (10) TMI 1835X X X X Extracts X X X X X X X X Extracts X X X X ..... is used by the appellant captively for generation of electricity within the factory. Electricity so generated is used in the factory for manufacture of final product and part of the generated electricity is sold to the outside parties for a consideration. During the disputed period, the appellant availed cenvat credit in respect of the input services used in or in relation to manufacture of their final product. According to the Department, since electricity is an exempted final product, the assessee was required to maintain separate accounts and was eligible to take cenvat credit only on the electricity used captively in the manufacture of the final products and not on the electricity wheeled out from the factory. Since, separate accounts h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate has relied upon the decision of this Bench of the Tribunal in the case of DSM Sugar Mills Ltd. vs CCE Meerut-I reported in 2014 (304) ELT 582 (Tri. Del) wherein, it has been held that the electricity is not an excisable goods, and as such, the provisions of Rule 6(3) of Cenvat Credit Rules for reversal of cenvat credit attributable to the exempted goods has no application. Ld. Advocate further submits that since there is no involvement of suppression of facts with intent to evade payment of duty and non-reversal of cenvat credit was due to genuine interpretation of law, the provisions of Rule 15(2) of the Rules have no application to the case in hand, and accordingly, imposition of penalty is not justified. 3. Per contra, the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sides and perused the records, No rate of duty has been prescribed for "electrical energy" classified under Chapter sub-heading 27160000 in the Central Excise Tariff Act, 1985. Further, no specific notification has been issued by the Central Government in exempting electrical energy from payment of Central Excise duty. I also find that the Tribunal in the case of DSM Sugar Mills (Supra) has held that the electricity is not excisable goods, and as such, the provisions of Rule 6(3) of the Cenvat Credit Rules, 2004 will have no application for reversal of Cenvat Credit with regard to the common input and input services. In view of above, I am of the opinion that there was justification for the appellant to entertain the belief that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt paragraphs in the said judgment are extracted herein below: "10. The expression ''suppression'" has been used in the proviso to Section 11A of the Act accompanied by very strong words as 'fraud' or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A the burden is cast upon it to prove suppr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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