TaxTMI 
TaxTMI 
2019 (11) TMI 1617
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.... for the period April 2011 - September 2015 & October 2015 - March 2016. Issue involved in this appeal is: "whether amount of 5%/6% of the value of electricity sold by the Appellant outside the factory is required to be reversed under Rule 6(3)(i) of the Cenvat Credit Rules, 2004". The facts in brief are as follows:- 2. The Appellant is engaged in the manufacture of graphite electrodes, falling under Tariff Item No. 8545 1100 of the Central Excise Tariff Act, 1985 ('CETA') and is also availing the benefit of Cenvat credit, under the Cenvat Credit Rules, 2004 ('CCR'). The Appellant has a captive power plant in their factory premises for generation of electricity, to cater to the requirement of power for manufacturing their finished product....
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....-excisable product and not an exempted product. 6. It is submitted that the item 'Electrical energy' figures at Tariff Item 2716 00 00 of CETA, but in the column for rate of duty "#" has been indicated, meaning thereby that no rate of duty is specified in the CETA for this item. Therefore, the item Electric energy, does not qualify to be called as excisable goods, as it is not subjected to a duty of excise. In this regard, reliance is placed on the decision of Hon'ble Allahabad High Court in the case of GulariaChini Mills v. UOI, 2014 (34) STR 175 (All.) wherein it was inter-alia, held that electricity energy is neither excisable under Section 2(d) of the Excise Act nor an exempt goods in terms of Rule 2(d) of the Credit Rules, therefore, ....
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...., to mean 'excisable goods which are exempt from the whole of the duty of excise leviable thereon and includes goods which are chargeable to "Nil" rate of duty'. 2. The expression 'excisable goods' has been defined in Section 2(d) of the Excise Act to mean 'goods specified in the First Schedule and the Second Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) as being subject to a duty of excise and includes salt.' 3. From a combined reading of the definition of 'excisable goods' and 'exempted goods', for any good to be considered as exempted good, the following criteria must be complied with: * Must be specified in the First Schedule/Second Schedule to the Excise Tariff; * Must be subject to a duty of excise; and * Must ....
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....ve that in Appellant's own case i.e. HEG Ltd. v. CCE, Raipur, the Hon'ble Tribunal vide Final Order No. 58055/2017 dated 14.11.2017, after considering the Chartered Accountant Certificate with respect to proportionate availment of Cenvat credit on input & input services used in generation of electricity captively consumed had remanded the matter for verification considering it to be sufficient compliance of Rule 6 (3) of the Credit Rules. Also there are other decisions where availment of proportionate credit attributable to electricity consumed captively has been held to be sufficient compliance of Rule 6 (3) of CCR and not warranting reversal @5%/6% under Rule 6 (3)(i)/6(3A) thereof as: * Jai Balaji Industries Ltd. v. CCE, Raipur, 2017 (....