2020 (4) TMI 639

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....dated 01.08.2018 in the Appeal No.E/12768/2014. 2. The Revenue has proposed the following two questions of law for the consideration of this Court:- "16.A Whether, in the context of the facts in the circumstances of the case, the CESTAT was justified in holding that Cenvat credit on inputs and input services used in the power plant, can be availed by the respondent, to the extent the electricity supplied to the different units, beyound their factory premises? B. Whether, the CESTAT was justified in not relying the case of M/s. Sintex Industries Ltd., reported at 2013(287) ELT 261 (Gujarat), M/s.Maruti Suzuki Ltd. Vs. Commissioner of Central Excise, Delhi-III, 2009 (240) ELT 641 (S.C) and M/s Ultra Tech Cement Ltd versus CCE, Ahmedabad....

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....33) ELT 301 (Bom) 3. CCE, Vadodara 1 Vs. Sterling Gelatin 02011 (270) ELT.200 (Guj.) 4. UOI & Others Vs. Hindustan Zinc Ltd. Civil Appeal No.8621 of 2010 (SC) 5. Ballarpur Industries Ltd. Vs. CCE Nagpur - 2006 (205) ELT 483 (Tri.-Mum) 3. The learned Authorized Representative for the Revenue attempted to distinguish the decisions of the Tribunal in the case of Ho-tech Carbon (supra) on the ground that the Lean Gas is ultimately used in exempted goods. We find that the Tribunal in the case of Hi-tech Carbon (supra) has discussed in detail this issue. For the purpose of proper appreciation of the case, the relevant portion of the decision of the Tribunal in the case of Hi-tech Carbon (supra) is reproduced below: "We have conside....

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....39;off gases' are burnt out which generate heat which in turn is used in the boiler to generate steam. No doubt the steam has been generated by the appellants as a conscious act but it cannot be claimed by the Revenue that any part of the inputs, that is CBFS or any other inputs which has gone into the manufacture of Carbon Black has been used in the manufacture of steam. For the purpose of applying the provisions of Rule 57C or Rule 57CC, it is the pre-requisite that the inputs are used in the manufacture of products which are exempted from the whole of the duty of excise or is chargeable to nil rate of duty. The mere fact of using the off gases in the generation of steam will not tantamount to using the Modvatable inputs in the manufa....

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....and allow the appeal." It is noticed that Hon'ble High Court of Bombay and Hon'ble High Court of Gujarat had also approved the views of the Tribunal. 4. In view of the above discussions, we set aside the impugned order. The appeal filed by the appellant is allowed with consequential relief. 5.In view of the above order, the issue is no longer res-integra, accordingly, following the ratio of above Tribunal order, we set aside the impugned order and allow the appeal." 4. We inquired with Mr.Ankit Shah, the learned advocate appearing for the appellant whether the Revenue has challenged the order dated 09.04.2015 passed by the Tribunal in the case of the very same assessee, who is here before us. Mr.Shah, pointed out that the ....

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....re of dutiable goods is given under the Cenvat Credit Rules so as to prevent the cascading effect of duty. Cenvat Credit is availed in respect of duty paid on the inputs used in the manufacture of final product. At the time of clearance of the goods, the amount of credit being availed would be used for the payment of excise duty. Thus, the credit availed at the first stage would stand recovered at the time of clearance of the exportable goods. In the facts of the present case, Cenvat Credit would have been availed in respect of the input Hydrochloric Acid. The entire Hydrochloric Acid having been used for the manufacture of excisable goods being Gelatin, the credit availed in respect of the inputs would be duly recovered at the time of clea....