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TMI Blog2023 (3) TMI 1478X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-11 to August 2013 Nonpayment of 6% amount on electricity sold to MSEDCL & trading of goods 2 V(39)15 - 265/ADJ/COMMR.KOP /14 dated 20.09.2014 76,24,644/- (Rupees Seventy Lakh, Twenty Four Thousand, Six Hundred and Forty Four only) Sept. 2013 to June 2014 Nonpayment of 6% amount on sale of electricity to MSEDCL 44. I order for appropriation of the amount of Rs 2,32,39,597/- which was deposited by the noticee against the demand at Sr. No. 1 above towards the amount so confirmed and payable by them against the demand at Sr.no. 1 shown in Col No. 3 of table above; 45. I order recovery of Interest at the appropriate rate on the demands confirmed at Sr.No. 1 & 2 above, till the date of its actual payment, under the provisions of Rule 14 of the Cenvat Credit Rules, 2004, read with Section 11AA/11AB of the Central Excise Act, 1944; 46. I impose a penalty equivalent to the amount of demand confirmed at Sr.No. 1 & 2 above Rs. 13,67,96,730/-(Rupees Thirteen Crore, Sixty Seven Lakh, Ninety Six Thousand, Seven Hundred and Thirty Only) and Rs. 76,24,644/-(Rupees Seventy Six Lakh, Twenty Four Thousand, Six Hundred and Forty Four only) upon them under Rule 15(2) of the Cenvat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944; (c) An amount of Rs 2,32,39,597/- deposited by them voluntarily should not be adjusted and appropriated towards the amount so demanded from them; (d) Interest at the appropriate rate on the said inadmissible cenvat credit, should not be demanded and recovered from them, from the date of availment of such wrong credit, till the date of its actual payment, under the provisions of Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AA/11AB of the Central Excise Act, 1944; (e) Penalty should not be imposed upon them under Rule 15(2) of the Cenvat Credit Rules, 2004 read with Section 11 AC of the Central Excise Act, 1944. 2.5 Another Show Cause Cum Demand Notice dated 30.09.2014 covering only aspect of nonpayment of 6% amount on value of electricity supplied to the MSEDCL for period from Sept. 2013 to June 2014 has been issued for an amount of RS. 76,24,644/- on 30.09.2014. 2.6 Both the show cause notices have been adjudicated by the impugned order. Aggrieved appellants have filed this appeal. 3.1 We have heard Shri Rajesh Ostwal and Ms Payal Nahar, Advocates for the appellant and Shri Sunil Kumar Katiyar, Assistant Commissioner, Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y transferred to Urse plant (sister unit) is not sustainable, Electricity wheeled out to sister units cannot be considered as electricity wheeled out. 3.3 Learned authorized representative for the revenue reiterates the findings recorded in the impugned order. 4.1 We have considered the impugned order along with the submissions made in appeal and during the course of arguments 4.2 Undisputedly EDC is an input for the appellant and they could have cleared the same on reversal of credit taken on the said inputs as per Rule 3 (5) of the Cenvat Credit Rules, 2004. Such removal of the inputs cannot be said to be trading in the inputs and the clearance of inputs against which the appellants have taken the credit need to be dealt in terms of the said rule 3 (5) and not in the terms of Rule 6, ibid. In case of Punjab Steels [2010 (260) ELT 521 (P&H)], Hon'ble High Court held as under: "Be that as it may, however, still even on merits, this court finds that the view as expressed by the Tribunal is strictly in conformity with the Rules. Rule 2(k) of the Rules defines 'input', whereas Rule 2(1) defines 'input service', meaning thereby both the terms have been defined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f prior declaration or intimation. Reliance is placed on the following decisions: i. Mercedes Benz India (P) Limited [2015 (40) STR 381 (T)] ii. Tata Technologies Ltd [2016 (42) STR 290 (T)] iii. Star Agriwarehousing Ltd. [2020 (10) TMI 198 CESTAT NEW DELHI] iv. Reliance Life Insurance Co. Ltd. [2017 (10) TMI 400 - CESTAT MUMBAI] v. Thiru Arooran Sugars Ltd [2018 (7) TMI 87 - CESTAT CHENNAI] vi. Aster Pvt. Ltd. Vs. CCE - 2016 (6) TMI 866 - CESTAT HYDERABAD vii. Mercedes Benz India Pvt. Ltd [2020 (3) TMI 146 - CESTAT MUMBAI] Therefore, the demand raised under Rule 6(3)(i) on the ground that the appellants have not filed declaration under Rule 6(3)(ii) read with Rule 6(3A) of CCR, 2004 is erroneous. 4.6 As per Rule 2(d) of CCR, 2004 'excisable goods' are those which are specified in the first and second Schedule to the CETA, 1985 as being subject to a duty of excise. Electricity is classified in Chapter 27 of the CETA, 1985. However, there is no rate of duty specified for it. However in the case of Maruti Suzuki [2009 (240) E.L.T. 641 (S.C.)] Hon'ble Supreme Court has held as follows: "19. The question which still remains to be answered is : whether an assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an input for the purposes of obtaining credit on the duty payable thereon." 20. To sum up, we hold that the definition of "input" brings within its fold, inputs used for generation of electricity or steam, provided such electricity or steam is used within the factory of production for manufacture of final products or for any other purpose. The important point to be noted is that, in the present case, excess electricity has been cleared by the assessee at the agreed rate from time to time in favour of its joint ventures, vendors etc. for a price and has also cleared such electricity in favour of the grid for distribution. To that extent, in our view, assessee was not entitled to CENVAT credit. In short, assessee is entitled to credit on the eligible inputs utilized in the generation of electricity to the extent to which they are using the produced electricity within their factory (for captive consumption). They are not entitled to CENVAT credit to the extent of the excess electricity cleared at the contractual rates in favour of joint ventures, vendors etc., which is sold at a price." 4.7 Therefore we do not agree with the submission that appellants were not require required to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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