M/S. Chattisgarh Electricity Co. Ltd vs C.C.E & S.T. Raipur

[Arising out of Order-in-Appeal No. Commissioner/RPR/52/2005 dated 28.11.2005 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Raipur].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3 Whether Their Lordships wish to see the fair copy of the Order?

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Chattisgarh Electricity Co. Ltd. .Appellants

Vs.

C.C.E & S.T. Raipur .Respondent

Appearance:

Shri Amit Agarwal, CA for the Appellant

Shri Govind Dixit, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Hon'ble Shri B. Ravichandran, Member (Technical)

Date of Hearing: 30.09.2015

FINAL ORDER NO. 53155/2015-EX(DB)

Per B. Ravichandran:

The appellants are engaged in the manufacture of Ferro Alloys. They are also engaged in generating electricity in their factory for captive use. They have availed Cenvat Credit of duty paid on inputs used for generation of electricity. As they have cleared some portion of electricity to outside buyers proceedings were initiated against them to demand an amount equal to 8% of the value of electricity sold outside in terms of Rule 6 of Cenvat Credit Rules 2002. The original authority vide his letter dated 28.11.2005 confirmed the demand and imposed equal penalty on the appellant. Appellants preferred appeal before this Tribunal which was decided by final order no. 877/2009 dated 03.11.2009. The Tribunal remanded the matter to the adjudicating authority to work out the quantum of amount payable by the appellant for the normal period of demand. The penalty and the demand for extended period were set aside. The Revenue filed appeal before the Honble High Court of Chhattisgarh contesting the findings of this Tribunal regarding time bar. The Honble High Court vide order dated 20.07.2015 set aside this Tribunals order dated 03.11.2009 and remanded the matter for a fresh decision.

2. During the course of arguments the Ld. Consultant for the appellant informed that consequent upon passing of Finance Act, 2010 the issue involved in the show cause notice dated 12.01.2004 resulting in impugned order in original dated 28.11.2005 has been settled by the jurisdictional Commissioner vide his letter dated 06.01.2011.

3. The Ld. Consultant submitted copies of their application dated 23.10.2010 opting for scheme under section 71 and 72 of the Finance Act, 2010 and letter dated 06.01.2011 of the Commissioner accepting the appellants option as exercised above. It is seen that these proceedings in terms of Finance Act, 2010 introducing retrospective amendment in Rule 6 of the Cenvat Credit Rules 2001 was not placed before the Honble High Court of Chhattisgarh when the matter was taken up for decision. The Consultant informed that as recorded in the Honble High Courts order there was no representation from the appellants side before the Honble High Court.

4. The Ld. AR stated that these developments in terms of provisions of Finance Act, 2010 were apparently not placed before the Honble High Court by the Revenue also.

5. We have examined the provisions of Section 71 and section 72 of the Finance Act, 2010 which amended Rule 6 of the Cenvat Credit Rules 2001 and Rule 6 of the Cenvat Credit Rules 2002, respectively. The effect of the amendment have been explained in the letter dated 26.02.2010 of Joint Secretary, TRU, Ministry of Finance. It was clarified that the benefit of allowing Cenvat Credit to be reversed on proportionate basis when common inputs are used for the manufacture on dutiable and exempted product is being extended retrospectively for pending cases. The appellants accordingly opted for such benefit of reversing credit on proportionate basis and filed application dated 23.10.2010 to the Commissioner. The application contained the details of calculation and amount to be reversed by them in terms of the newly introduced provisions applicable retrospectively. It is seen from the letter dated 06.01.2011 of the Commissioner that said application has been accepted in terms of the power conferred on him under section 71 and 72 of the Finance Act 2010. He accordingly accepted the application filed by the Applicant and disposed of the case. It is clear from the above legal provisions and proceedings of the Commissioner dated 06.10.2011 there is no pending action in respect of proceedings initiated against the appellant through show cause notice dated 13.01.2004.

6. As such the appeal is disposed of.

(Operative part of the order pronounced in the open court)

(B. Ravichandran) (Ashok Jindal) Member (Technical) Member (Judicial)

Bhanu

3

E/254/2006-EX(DB)