2023 (5) TMI 1338

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....apital goods, in accordance with law. 3. The appellant has three captive power plants. Two of the plants used coal as fuel and the third plant used waste heat for generation of electricity. The electricity, so generated by the three captive power plants is accumulated in the transmitter, from where it is distributed to the plant for captive use and also a small part is used by the residential colony occupied by the staff and workmen of the appellant. The appellant wheels out and sales the surplus power to Rajasthan State Electricity Board (RSEB). The admitted fact is that the appellant have reversed the proportionate amount attributable to inputs and input services with respect to the proportion of power wheeled out to RSEB or used in th....

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...., the appellant preferred appeal before the Commissioner (Appeals), inter alia, on the grounds inter alia that the demand for the extended period of limitation is not invokable as the appellant have maintained proper books of accounts and records and the issue is wholly interpretational in nature. Admittedly, the appellant have already reversed the proportionate amount towards the electricity supplied to the residential colony as well as wheeled out to RSEB. 7. It is further urged that the residential colony is an 'industrial township', which has been created and/or constructed by the appellant as the appellant requires presence of the competent personnel and workmen round the clock, adjacent to the plant. The plant of the appellant work....

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....nalty is imposable. 10. Ld. Commissioner (Appeals) was pleased to reject the appeal upholding the order-in-original. As regards the ground of limitation taken by the appellant, it was observed that the appellant have availed cenvat credit of common input service and the amount attributable to the supply of the residential colony and wheeled out to the RSEB works out to Rs.6,00,023/- for the period under dispute. The appellant never disclosed before the department at any point of time through the periodical returns or in any other manner. This fact came to knowledge only during audit. Further, relied on Rule 9 (6) of CCR, which stipulates that burden of proof regarding admissibility of cenvat credit lies on the manufacturer/assessee takin....

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....d by the Hon'ble Supreme Court in Union of India Vs. DSCL Sugar Ltd. - 2015 (10) TMI 566, wherein it was held that bagasse which emerges as waste, hence it is not manufacture of exempted goods. Electrical energy was neither excisable under Section 2 (d) of Central Excise Act, 1944 nor exempted goods under Rule 2 (d) of Cenvat Credit Rules, 2004 and hence Rule 6 of Cenvat Credit Rules is not applicable. 14. Ld. Authorised Representative for Revenue relies on the impugned order. 15. Having considered the rival contentions, I find that the issue is wholly interpretational in nature and also it is undisputed fact that the appellant have maintained proper records of the transactions and they were subject to regular inspection and audit by ....