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2019 (11) TMI 433

..... tity is sold to outside to power distribution companies for a consideration without payment of duty as no rate of duty has been prescribed in the CETA, 1985. HELD THAT:- The issue involved in the present appeal is no more res integra and has been settled by the decision of the Allahabad High Court in the case of GULARIA CHINI MILLS AND OTHERS VERSUS UNION OF INDIA AND OTHERS [2013 (7) TMI 159 - ALLAHABAD HIGH COURT] which has been approved by the Hon’ble Supreme Court in the case of UNION OF INDIA VERSUS DSCL SUGAR LTD. [2015 (10) TMI 566 - SUPREME COURT]. Further, the Division Bench of the Tribunal in the case of JAKARYA SUGARS LTD. VERSUS COMMISSIONER OF CENTRAL EXCISE, PUNE-II [2018 (5) TMI 1665 - CESTAT MUMBAI] has also considered .....

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..... onsideration without payment of duty as no rate of duty has been prescribed in the CETA, 1985. Therefore, the CENVAT credit involved in input and input services related to that quantity of electricity sold to outside agency is not eligible to the appellant. The department has demanded an amount of ₹ 19,09,717/- equal to 6% of the value of the electricity sold to outside agency during the impugned period. The original authority has confirmed the demand under Rule 6. Aggrieved by the said order, appellant filed appeal before the Commissioner (A) who rejected the same. 3. Heard both the parties and perused the records. 4. Learned counsel appearing for the appellant submitted that the impugned order is not sustainable in law as the same i .....

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..... he generation of electricity, then there is no question of application of provisions of Rule 6(2)/6(3) of 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 CENVAT 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 .....

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..... case of M/s. Athani Sugars Ltd. & Others. Tribunal s Final Order dated 31.12.2018 has set aside the impugned order and allowed the appeal of the appellant. 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 .....

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..... the material on record, I find that the issue involved in the present appeal is no more res integra and has been settled by the decision of the Allahabad High Court in the case of Gularia Chini Mills cited supra which has been approved by the Hon ble Supreme Court in the case of UOI vs. M/s. DSCL Sugar Ltd. cited supra. Further, the Division Bench of the Tribunal in the case of Jakarya Sugars Ltd. cited supra has also considered the same issue and after relying upon the judgment of the Allahabad High Court in the case of Gularia Chini Mills 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, 19 .....

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