2018 (1) TMI 1262

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.... for initiatizing action for recovery of 8% or 10% of the value of such electricity sold outside the factory when the respondent failed to follow the procedure laid down under Rule 6(1), 6(2) and 6(3) of the Cenvat Credit Rules, 2004, inasmuch as it has neither maintained separate inventory of inputs and input services used in the manufacture of dutiable and exempted goods nor filed option not to maintain such separate inventory, and availed the entire Cenvat credit used in the manufacture of dutiable and exempted final product; and there is nothing on record in support of the respondent's claim that it had reversed the attributable credit availed on all the inputs and input services utilized in the manufacture of exempted excisable goods (....

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....f electricity described in that paragraph of the original order. The original authority proceeded as if the duty was leviable on the said sale value of electricity as required in terms of Rule 6(3)(b) of the Cenvat Credit Rules, 2002 and 2004 along with interest and that such amount is recoverable. Penalty was also proposed. The respondent-assessee carried it in appeal before the Commissioner. In paragraph 8 of the Commissioner's order, it was specifically noted that a small portion referred to in paragraph 6 of the original order of the Additional Commissioner is sold to various parties outside the factory premises, from out of the electricity generated by the respondent-assessee for its purposes. The Commissioner interfered with the findi....

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.... quantum of electricity which was sold out by the respondent. This is obviously the reason why he CESTAT had proceeded as if the said fact situation is an admitted one. It does not depend upon any admission or concession made by the representative of either the Revenue or the respondent before the CESTAT. 6. On the aforesaid admitted factual premise, taking into consideration that the electricity is not an item for which any particular rate of duty is fixed in the Tariff Act, none can be criticized for not having raised the issue of maintaining separate accounts either before the first appellate authority. The original order and its preceding notice of proposal including as to penalty, were not dealt with, or based on any issue relati....