TMI Blog2020 (11) TMI 663X X X X Extracts X X X X X X X X Extracts X X X X ..... e 6 of the CCR, the factual position remains that no Cenvat availed inputs were used by the Appellant in the generation of electricity from Bagasse. Bagasse remains non-excisable and the question of availing any credit thereon does not arise. That the Appellant had maintained separate records and refrained from availing any credit on the other indirect inputs is also evidenced from the CA Certificate dated 22 February 2017 which has been sought to be refuted by the Adjudicating Authority on the ground that the same is limited to non-availment of credit on few inputs only. However, the adjudicating authority has not referred to any other inputs over and above, those mentioned in the CA Certificate. Therefore, the Certificate of the expert could not have been discarded without any specific and cogent evidence concerning the disputed period. Time Limitation - HELD THAT:- The Adjudicating Authority himself has accepted that a Notice for the prior period was issued on the self-same issue for the period 2013-14 and the demand covering of 6% under Rule 6(3) was dropped by the Adjudicating Authority therein. Under these circumstances, the subsequent Notice could not have been issued i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this regard was amended with effect from 1 March 2015 and electricity generated from Bagasse in the instant case being nonexcisable, did not attract the provisions of Rule 6 of the CCR at all, by placing reliance on the following cases: Gularia Chini Mills Vs. UOI 2014 (34) STR 175; UOI Vs. DSCL Sugar Ltd. 2015 (322) ELT 769; Collector of CE Vs. M/s. Solaris Chemtech Ltd. 2007 (214) ELT 481 (SC) CCE ST Vs. M/s Palriwal Hydrocarbons Chemicals Pvt. Ltd. 2019 (4) TMI 1335; Satavahana Ispat Limited Vs. CCT, Tirupati GST 2019 (3) TMI 100 B. The Learned Commissioner has sought to distinguish the binding judicial precedents at para A above, on superfluous grounds. The findings of the Learned Commissioner in this regard and the counter contentions of the Appellant are captured in the table below: Commissioner s Findings Contentions of the Appellant (1) Observations of the Hon ble Supreme Court in Solaris Chemtech that electricity is nonexcisable is an obiter (para 4.2 and 4.4 of the OIO ). (1) Not an obiter. Further even an obiter of the Hon ble Supreme Court has considerable wei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, maintenance of separate accounts in respect of such input services was an impossibility and law could not require a person to perform an impossible act. In any event, the Appellant has also reversed the credit of common input services of ₹ 10,64,247/- in their returns for the month of March 2016 and such reversal is not disputed by the adjudicating authority. It is a settled law that suo moto reversal of credit amounts to non-taking of credit as held in the following cases: Texmo Pipes Products Ltd. Vs. CCE ST 2020 (2) TMI 685; CCE C Vs. Precot Meridian Ltd. 2015 (325) ELT 234 (S.C.); CCE Vs. Mount Mettur Pharmaceuticals Ltd. 2017 (356) ELT 184 (Mad.) D. Since no Cenvat availed input/input service has been used in the generation of electricity from Bagasse, Rule 6(3)(1) shall have no application even after amendment to Rule 6(1) of the CCR with effect from 1 March 2015 as consistently held by the Hon ble Tribunal in the following cases in the context of the sugar factories only: Jakarya Sugar 2018 (5) TMI 1665; The Ugar Sugar Works Ltd. 2018 (11) TMI 913; M/s. Sitaram Maharaj Sakhar Karkhana Ltd. 2019 (11) TMI 489; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant that the technology for generating electricity from Bagasse is uniform across sugar factories in India and it is technically impossible to not use other indirect items (not in the nature of fuel).The Gularia Chini case itself uses the expression no direct inputs are involved (refer para 33 of the said decision). Indirect input services were also involved in the Gularia Chini case as evident from para 5 of the said decision. Therefore, the distinction sought to be made does not exist as long as the raw material used for generating electricity is Bagasse.Since the issue involved before us is no more res integra, we are inclined to drop the demand under Rule 6 of the CCR for the period upto 1 March 2015 by following the decisions cited supra. 7. Even after the insertion of the Explanation 1 Rule 6 of the CCR with effect from 1 March 2015 equating non-excisable goods with exempted goods for the purpose of Rule 6 of the CCR, the factual position remains that no Cenvat availed inputs were used by the Appellant in the generation of electricity from Bagasse. Bagasse remains non-excisable and the question of availing any credit thereon does not arise. That the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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