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2015 (11) TMI 37 - CESTAT NEW DELHI

2015 (11) TMI 37 - CESTAT NEW DELHI - TMI - Duty demand - extended period of limitation - whether or not the appellant is liable to pay 10% of value of electricity wheeled out of their factory during the relevant period - Held that:- On perusal of the case details it is clear that the matter regarding the status of electricity whether the same is excisable, exempted is a matter of dispute and has been subject matter of various rulings by CESTAT, Hon’ble High Courts and Hon’ble Supreme Court. In .....

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r 2008 to June 2009 (covered by first show cause notice dated 12/11/2009) and during July 2009 to December 2009 (covered by second show cause notice dated 18/03/2010) and for the period January 2010 to June 2010 (covered by third show cause notice dated 03/02/2011), the appellant have reversed Cenvat credit attributable to input services used in relation to manufacture of electricity cleared outside. - show cause notice dated 12/11/2009 is hit by time bar beyond the normal period - Decided in fa .....

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y the appellant are dutiable and are cleared on payment of duty. The present appeal is against order-in-original dated 10/2/14 passed by the Commissioner. The facts of the case in brief are that the appellants are having their captive power plant for generation of electricity. The dispute in present case relates to availment of Cenvat credit of service tax paid on various input services. The Department is of the view that since these services are commonly used in or in relation to the generation .....

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April 2005 to June 2009. The second notice dated 18/3/2010 covered the period of July 2009 to December 2009. The third notice dated 03/2/2011 covered the period of January 2010 to June 2010. These notices were adjudicated by the learned Commissioner vide order dated 10/2/2014. The learned Commissioner confirmed the demand of ₹ 26,12,59,295/- representing 10% of value of electricity cleared during the period April 2005 to September 2008. He imposed equal penalty on the appellant. He droppe .....

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2 (d) of Cenvat Credit Rules. The Hon ble Supreme Court in the case of CCE vs. Solaris Chemtech Limited reported in 2007 (214) E.L.T. 481 (S.C.) held that electricity is not an excisable item. The said judgment of the Hon ble Supreme Court was followed by Hon ble Allahabad High Court also in the case of Gularia Chini Mills vs. Union of India reported in 2013 TIOL 557 HC ALL CX. Without prejudice to the above submission, the appellant pleaded that the demand, if any, can only be to the extent of .....

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10% value of electricity is not sustainable. The learned Counsel strongly contended that extended period of demand is not invokable in the present case. The demand for the period April 2005 to September 2008 as proposed in the show cause notice dated 12/11/2009 is not legally sustainable. They have been filing monthly returns in form ER-1. During the course of audit in September 2006 the Departmental officers raised the same objection and they have given replies to the same. Further, earlier pr .....

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lectricity some portion of which is wheeled outside the factory and they were utilizing common input services towards such generation of electricity. In these set of facts invoking extended period in a case involving technical interpretation of excisability of electricity etc. is not legally sustainable. The learned AR on the other hand submitted that as per the Cenvat credit provisions relevant to the period the appellant should have exercised the option failing which they have to pay 10% of th .....

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