TMI Blog2018 (5) TMI 1209X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 49,62,640/- is already under adjudication pursuant to the first show cause notice. There appears no mala fide or fraudulent act on the part of the assessee, more so, when the first proceedings are pending - appeal dismissed - decided against Revenue. - TAXC No. 130 of 2016, TAXC No. 137 of 2016 - - - Dated:- 17-5-2018 - Hon'ble Shri Justice Prashant Kumar Mishra And Hon'ble Shri Justice Ram Prasanna Sharma For the Revenue : Shri Vinay Pandey, Advocate For the Assessee : Shri Yogendra Aldak, Shri Malay Shrivastava Shri Raja Sharma, Advocates JUDGMENT The following judgment of the Court was delivered by Prashant Kumar Mishra, J. 1. The appeal preferred by the Revenue bearing TAXC No.130 of 2016 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, pending adjudication of the dispute the assessee took re-credit of the said amount reversed earlier. This was done on the basis of its own internal auditor s report. The Department again objected to taking of suo motu re-credit and the show cause notice issued against the assessee was adjudicated. 6. By order dated 29-6-2015 the Commissioner, Central Excise, Bilaspur, inter alia, holding that the input and input service in the generation of electricity, which is used in the factory for manufacture of final goods are eligible for credit but input and input service attributable to electricity wheeled outside and not used within the factory is not eligible for credit and the credit entry is required to be reversed as per the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tune of ₹ 49,62,640/- and fastening of liability towards interest. 10. It appears the assessee was issued the present/subject show cause notice on 31-1-2014, inter alia, mentioning that vide Revenue s letter dated 7-11-2013 the assessee was directed to submit the information about actual use and final products manufactured out of the goods described in the Annexure to the said letter. In the said letter of the Superintendent, Central Excise, Range : Raigarh, apart from other goods on which input Cenvat credit were availed during the period January, 2013 to August, 2013 Cenvat credit on Concrete Sleeper amounting to ₹ 51,19,424/- was also shown. 11. In reply the assessee informed that Cenvat credit to the tune of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee has failed to demonstrate as to on which particular item or goods the Cenvat credit of ₹ 49,62,640/- has been availed. Particularly, it could not be pointed out as to why the Cenvat credit reversed earlier was restored by the assessee when the earlier show cause notice dated 27-6-2013 is still pending adjudication. 15. In absence of the assessee having been able to point out the very basis of availment of Cenvat credit or restoration of Cenvat credit, which was earlier reversed by it upon receipt of show cause notice dated 27-6-2013, we do not find any ground to admit the appeal preferred as the assessee, however, the first show cause notice is already pending for adjudication, the Tribunal has rightly set aside the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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