2018 (6) TMI 724 - AT - Central Excise

Tribunal Upholds Ineligibility for Cenvat Credit on Electricity Inputs

M/s. The India Cements Ltd. Versus CCE & ST, Tirunelveli (Vice-versa)

The Tribunal upheld the appellant's ineligibility for Cenvat credit on inputs/input services used for wheeled out electricity, directing payment of the ... CENVAT credit - reversal of credit attributable to the portion of electricity wheeled out - Whether assessee is eligible for cenvat credit on inputs/input services used for generation of electricity wheeled to TNEB and then drawn by their sister units? - Held that:- The issue decided by this Bench in the appellant's own case M/S. INDIA CEMENTS LTD. VERSUS CCE & ST, TIRUNELVELI [2018 (3) TMI 180 - CESTAT CHENNAI], where the Tribunal held that the assesse is not eligible for credit - credit not allowed. The issue of eligibility of credit being decided against the assesse the claim for refund of the credit reversed by them cannot sustain - appellants are liable to reverse/pay the wrongly availed credit. Appeal dismissed - decided against appellant. Issues:1. Eligibility of Cenvat credit on inputs/input services used for the generation of electricity wheeled out to TNEB and drawn by sister units.2. Rejection of refund claims for the reversed credit attributable to wheeled out electricity.3. Appeal against rejection of refund claims for input/input services used for electricity wheeled out and reversed.Issue 1 - Eligibility of Cenvat Credit:The appellant, engaged in cement manufacturing with a captive power plant, wheeled out a portion of electricity to TNEB grid for sister units. The department contended that credit on common inputs for electricity not used in cement manufacturing is ineligible. The Tribunal, in a previous case, held the appellant ineligible for credit based on agreements and adjustments made with TANGEDCO. Citing relevant precedents, the Tribunal reaffirmed the ineligibility of the appellant for the credit, directing payment of the amount equal to 6% of the value of unused electricity, along with interest. Consequently, the claim for refund of reversed credit was dismissed, and the appellant was instructed to reverse/pay the wrongly availed credit.Issue 2 - Rejection of Refund Claims:The appellant filed refund claims for credits reversed on wheeled out electricity, which were rejected as premature by the original authority. Subsequent appeals led to the Commissioner (Appeals) ruling in favor of the appellant, allowing the refund based on the eligibility of credits used for electricity wheeled out to TNEB and drawn by sister units. However, the Tribunal overturned this decision, dismissing the appeals filed by the appellant and allowing those filed by the department, thereby upholding the rejection of refund claims.Issue 3 - Appeal Against Rejection of Refund Claims:Further refund claims by the appellant for credits on inputs/input services used for wheeled out electricity were rejected by the original authority as premature. The Commissioner (Appeals) later allowed these refund claims, stating the appellant's eligibility for the credit. However, the department filed appeals against this decision, leading to the Tribunal's final ruling dismissing the appellant's appeals and allowing those of the department, thereby upholding the rejection of refund claims for the specified periods.In conclusion, the Tribunal upheld the ineligibility of the appellant for Cenvat credit on inputs/input services used for wheeled out electricity, directing payment of the due amount and dismissing the refund claims. The decision emphasized adherence to agreements and adjustments made with external entities regarding electricity usage, ultimately leading to the dismissal of the appellant's appeals and the allowance of the department's appeals.