TMI Blog2018 (11) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 6(3) (i) of CCR simply on the ground that the appellant has failed to maintain separate account on receipt of input or input services used in the manufacture of dutiable goods, namely, Sugar and exempted goods, namely, electricity. The demand of 6% of the value of electricity sold to various companies is not sustainable in law - appeal allowed - decided in favor of appellant. - E/20986/2018; E/20988/2018; E/20453/2018 & E/20820/2018 - Final Order No: 21723 – 21726/2018 - Dated:- 13-11-2018 - MR. S.S GARG, JUDICIAL MEMBER Mr. V.B. Gaikwad, Advocate, Mr. M. A. Nyalkalkar, Advocate For the Appellants Mr. K. B. Nanaiah, Asst. Commissioner (AR), Mr. K. Murali, Superintendent (AR) For the Respondent ORDER Per: S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 11A(1) of Central Excise Act, 1944 read with Rule 14 of the CENVAT Credit Rules, 2004 and imposed penalty of ₹ 5,56,581/- under Rule 15(1) of the CENVAT Credit Rules and has also ordered for recovery of interest under Section 11AB of Central Excise Act. Being aggrieved by the said order, the appellant filed appeal before the Commissioner (A) and the Commissioner (A) has rejected the appeal vide the impugned orders. Hence, the present appeals. 3. Heard both the parties and perused the records. 4. Learned counsel appearing for the appellants submitted that the impugned order is not sustainable in law as the same is contrary to the statutory provision as well as contrary to the binding judicial precedents decided by the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCR, 2004. He further submitted that even the amended provisions of Rule 6 will apply only when it is proved beyond doubt that the assessee has manufactured the dutiable as well as non-excisable / exempted goods by using common CEVAT credit availed on inputs and input services. Whereas in the present case, there is absolutely no evidence adduced to prove the use of common inputs or input services used in or in relation to the manufacture of dutiable goods and non-excisable electricity. Hence, the confirmation of demand for an amount of 6% of value of electricity is not tenable in law. He further submitted that this issue is no more res integra and has been settled by various decisions of the Tribunal and the Courts. He relied upon the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.2 Further, he relied upon the decision of Ganga Kishan Sahakari Chini Mills Ltd. vs. CCE: 2017 (346) ELT 450 wherein it has been held that in the absence of evidence about the common inputs/input services, the provision of Rule 6 of CCR, 2004 are not applicable. He also submitted that when it is impossible to maintain common inputs/input services, then the Department cannot demand 6% amount under Rule 6(3)(1) of CCR, 2004. For this submission, he relied upon the following decisions: CCE vs. Maa Mangala Ispat Pvt. Ltd.: 2017 (49) STR 593. CCE vs. Goyal Proteins Ltd.: 2015 (325) ELT 165 Narmada Gelatins Ltd. vs. CCE: 2009 (233) ELT 332 4.3 Further, he submits that the department cannot force the option to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held that in the generation of electricity from bagasse, no other input or input service is used and therefore, the electrical energy is neither excisable under Section 2(d) of Central Excise Act, 1944 nor exempted goods and hence, Rule 6 is not applicable. 6.1 By following the ratios of the above said decisions, I am of the considered view that the demand of 6% of the value of electricity sold to various companies is not sustainable in law and therefore, I set aside the demand by allowing three appeals (E/20986/2018; E/20988/2018; E/20453/2018). 6.2 As far as appeal No. E/20820/2018 is concerned, the learned counsel for the appellant has also relied upon the same decisions which have been relied in the other appeals. Further, in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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