TaxTMI 
TaxTMI 
2020 (1) TMI 530
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....e and its employee, Mr.Promode Kumbhakar respectively, challenging the Order-in-Original (OIO) No. 104-107 dated 10.3.2016 passed by the adjudicating authority for the period December 2008 to September 2015. By the said OIO dated 10.03.2016, the adjudicating authority has confirmed differential duty demand of Rs. 8,89,40,509 under Rule 6(3)(i) of the Cenvat Credit Rules (CCR) with equivalent penalty and interest thereon upon against the assessee and a personal penalty of Rs. 1,00,000 upon its employee. On the other hand, Excise Appeal No. E/78861/2018 has been filed by the department against the Order-in-Appeal (OIA) No. 165 dated 11.07.2018 for the subsequent period i.e. October 2015 to June 2016 dropping the demand of Rs. 1,23,81,352 conf....
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....remains undisputed. 3. Proceedings were initiated against the assessee for alleged failure to maintain separate accounts in respect of inputs used in the manufacture of dutiable final product and electricity wheeled out to the State grid by issuance of 5 different Show-cause Notices covering the period December 2008 to June 2016 demanding payment of 5% / 6% as applicable of the sales value of electricity cleared to the State grid under Rule 6(3)(i) of the Cenvat Credit Rules. The Notices proceeded on the premise that if the assessee was maintaining separate records under Rule 6(2) of the CCR as claimed, there could be no question of proportionate reversals being made by the assessee at the end of each month. 4. All the 5 Notices were ad....
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.... by the Ahmedabad Bench of the CESTAT in respect of its other Plants in Western India with selfsame operations: (i) Philips Carbon Black Ltd. vs. CCE, Rajkot [2015 (10) TMI 338 (CESTAT AHMEDABAD)] (ii) Philips Carbon Black Ltd. vs. C.C.E. & S.T., Rajkot [Final Order No. A/11653/2018 (CESTAT AHMEDABAD)] (b) Within the power division, it was impossible for the assessee to maintain separate account and inventory of the inputs meant for power generation, which was consumed captively vis-à-vis sold outside as this could be done only if two different final products were involved and not for the same product. It is well settled that the law cannot compel a person to do an impossibility. Therefore, reversal of proportionate credit a....
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....o as to apply even to non-excisable goods. Given that electricity has been held to be non-excisable goods by none other than the Apex Court, the question of applicability of Rule 6(3)(i) to the sale value of electricity during the period upto 1 March 2015 does not apply in any eventuality. (e) Imposition of penalty upon the assessee and its employee cannot sustain as there was no mala fide. 6. The Learned departmental representative supports the O-I-O dated 10 March 2016 and re-iterates the findings of the adjudicating authority. 7. Heard both sides and perused the appeal records. The short issue involved in this case is whether the assessee is required to pay 5%/6% of the sale value of electricity wheeled out to the state grid, unde....
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..... 2016 as to why these decisions are not applicable to the factual matrix at hand. Therefore, following judicial discipline we are inclined to not take any different view of the matter. 8. Lex non cogit ad impossibilia is a well settled legal principle and we see merit in the contentions of the assessee that separate records in respect of common inputs could be maintained only when two final products are manufactured. Within the power division it was not possible to segregate the inputs at the stage of receipt itself, based on the ultimate use of the power post its production/generation. It is undisputed that the assessee had been making reversal of the proportionate cenvat credit attributable to inputs consumed in the power division to t....