TMI Blog2019 (12) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... when a common input, on which cannot availed is used in the manufacture of exempted and dutiable goods - For the generation of electricity, except the use of bagasee no any cenvatable input is used. Therefore, the Rule 6 does not come into play. The provisions of Rule 6(3) of CENVAT Credit Rules, 2004 are not applicable to the facts of the case - demand of 6% of the value of electricity on the appellant is not sustainable - Appeal allowed - decided in favor of appellant. - EXCISE APPEAL NO: 87464 of 2018 and 87468 of 2018 - FINAL ORDER NO: A/87285-87286/2019 - Dated:- 10-12-2019 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) Shri JN Somaiya, Advocate for the appellant Shri Anil Chaudhary, Deputy Commissioner (AR) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Counsel for the appellant that the show cause notices were vague, therefore, the matter be remanded to the adjudicating authority for ascertaining the facts of the case and for deciding the issue. 5. Heard the parties and considered the submissions. 6. The plea made by the Learned Authorised Representative are not acceptable at this stage as, show cause notice is the foundation of the case and if there is a lacuna in the show cause notice, the same cannot be rectified at the appellate stage or in remand proceedings. Therefore, the request made by the Learned Authorised Representative is rejected. 7. Now, I come to the issue in hand. I find that the same issue came up before this Tribunal in Jakarya S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, no cenvatable input was used for generation of electricity. Therefore, the demand under Rule 6 does not sustain. This issue has been considered by the Hon ble Allahabad High Court in the case of Gularia Chini Mills 2014 (34) STR 175 (All.), wherein the Hon ble High Court has ruled as under: 24. On perusal of the above judgment and order dated 18th May, 2012, it is clear that Rule 6 of 2004 Rules will only apply where a manufacturer manufactures both the excisable dutiable final products and also manufactures excisable exempted goods. Furthermore, for the applicability of Rule 6, manufacture of dutiable goods and manufacture of exempted goods are condition precedent. Thus, the law is well settled that bagasse is not manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods nor it is exempted goods as defined in Rule 2(d) of the 2004 Rules. 27 .. 28. Hence, manufacture is referred to both dutiable/excisable goods and exempted goods, which are final products. Only then, it is necessary for the manufacturer to maintain separate accounts. Rule 6 of the Cenvat Credit Rules, 2004, (which is pari materia to the erstwhile Rule 57CC) provides that if Cenvat credit has been taken on the inputs which are used for manufacture of dutiable and exempted final products then the assssee is required to reverse the proportionate credit or pay 10%/5% amount of the value of the exempted final products. Electricity is not excisable goods under Section 2(d) of the Act, hence Rule 6 of the Cenvat Credit Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sugarcane, admittedly, is a waste product and this bagasse is used in boiler as a fuel for generation of steam for running the turbine and for boiling the juice for the manufacture of sugar. Turbine generates electrical energy which is used for running the plant and machinery and surplus energy is sold to the U.P. Power Corporation Ltd. Furthermore, bagasse is used as fuel in the factory for manufacture of final product and no specific input is used up to the stage of emerging of bagasse which is a waste and which emerges on the crushing of sugarcane. Thus, we have no hesitation to say that electrical energy emerges from the bagasse and sold to U.P. Power Corporation Ltd. does not fall within the ambit of excisable goods. 5. From t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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