TMI Blog2019 (11) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... n ble Tribunal after considering the Chartered Accountant Certificate with respect to proportionate availment of Cenvat credit on input input services used in generation of electricity captively consumed had remanded the matter for verification considering it to be sufficient compliance of Rule 6 (3) of the Credit Rules. Further it is observed that though an Explanation was added to Rule 6(1), vide Notification No. 6/2015-CE(NT) dated 01.03.2015, providing that for the purposes of this rule, exempted goods or final products as defined in clauses (d) (h) of rule 2 shall include non-excisable goods cleared for a consideration from the factory . But this reinforces the contention of the Appellant that prior to 01.03.2015, non-excisable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is engaged in the manufacture of graphite electrodes, falling under Tariff Item No. 8545 1100 of the Central Excise Tariff Act, 1985 ( CETA ) and is also availing the benefit of Cenvat credit, under the Cenvat Credit Rules, 2004 ( CCR ). The Appellant has a captive power plant in their factory premises for generation of electricity, to cater to the requirement of power for manufacturing their finished product. The surplus power produced by the Appellant (as it cannot be stored) was sold to the Madhya Pradesh State Electricity Board. In the above background, investigation was conducted by the Department and the Appellant was asked to submit details of the electricity generated, consumed captively and sold outside. The Appellant intimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t qualify to be called as excisable goods, as it is not subjected to a duty of excise. In this regard, reliance is placed on the decision of Hon ble Allahabad High Court in the case of GulariaChini Mills v. UOI, 2014 (34) STR 175 (All.) wherein it was inter-alia, held that electricity energy is neither excisable under Section 2(d) of the Excise Act nor an exempt goods in terms of Rule 2(d) of the Credit Rules, therefore, the provisions of Rule 6 (3) have no application. The said decision of the Hon ble Allahabad High Court was affirmed by the Hon ble Supreme Court in the case of UOI v. DSCL Sugar Ltd., 2015 (322) ELT 769 (SC). 7. It is further submitted that the requirement of maintaining separate records under Rule 6(2)was not applicabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt. 3. From a combined reading of the definition of excisable goods and exempted goods , for any good to be considered as exempted good, the following criteria must be complied with: Must be specified in the First Schedule/Second Schedule to the Excise Tariff; Must be subject to a duty of excise; and Must be exempt from the whole of the duty of excise leviable thereon or chargeable to Nil rate of duty. 11. Further, when there being no duty leviable, there is no question of the Government issuing any exemption notification. Hence, the same cannot be considered as exempted goods. For electricity, the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity captively consumed had remanded the matter for verification considering it to be sufficient compliance of Rule 6 (3) of the Credit Rules. Also there are other decisions where availment of proportionate credit attributable to electricity consumed captively has been held to be sufficient compliance of Rule 6 (3) of CCR and not warranting reversal @5%/6% under Rule 6 (3)(i)/6(3A) thereof as: Jai Balaji Industries Ltd. v. CCE, Raipur, 2017 (352) ELT 86 (Tri. Del.)affirmed by Hon ble Chhattisgarh High Court in Commissioner v. Jai Balaji Industries Ltd., 2017 (356) ELT A48 (Chhattisgarh). The said decision was maintained by the Hon ble Supreme Court in 2018 (360) ELT A121 (S.C.). IND Synergy Ltd. v. CCE, Raipur, 2017 (11) TMI 475-C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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