ORDER
C. Satapathy, Member (T)
1. Heard both sides and perused case records including cited case laws. The issue involved in this case is whether CENVAT credit is admissible for LSHS used in the production of steam which in turn is used for manufacture of fertilizers, an exempted item. Shri R.C. Saxena, learned advocate appearing for the appellants cites the following decisions:-
1. Chemplast Sanmar Ltd. v. CCE., Coimbatore – 2000 (122) ELT 861 (Tri.)
2. Raymond Ltd. v. CCE, Mumbai-III – 2000 (117) ELT 104 (Tri.)
3. CCE, Tirunelveli v. Sudarsanam Spinning Mills – 2004 (62) RLT 70 (CESTAT-Che.)
4. CCE, Indore v. Indore Steel And Iron Mills Ltd. – 2003 (59) RLT 409 (CESTAT-Del.)
5. Navsari Oil Products Ltd. v. CCB, Surat – 2003 (55) RLT96 (CEGAT-Mum.)
6. Gujrat Narmada Fertilizers Co. Ltd. v. CCE, Vadodara – Order No. C-IV/666/WZB/2004 dated 17.2.2004.
It is his claim that in view of the aforesaid decisions, the CENVAT credit is available in respect of the LSHS.
2. Countering the arguments/ Shri M.K. Gupta, learned Jt.C.D.R. states that these decisions either relate to an earlier period when the rules were different or relate to cases were both the dutiable and exempted goods were produced using the fuel. He further states that during the period 1.4.2000 to 30.6.2001 Rule 57AD (1) of the Central Excise Rules, 1944 and for the period after 1.7.2001, Rule 6(1) of the CENVAT credit Rules, 2001 do not specifically permit CENVAT credit on such quantity of inputs which is used in the manufacture of exempted goods. It is his contention that the present case is squarely covered by these provisions. He also states that Rule 57AD (2) of the Central Excise Rules, 1944 and Rule 6 (2) of the CENVAT Credit Rules, 2001 are merely procedural provisions to deal with cases were inputs are used for producing both dutiable and exempted goods and that these provisions do not apply to inputs intended to be used as fuel. He also brings to our notice that in a similar case, this Bench has ordered pre-deposit of 50% of the duty amount vide order. No. 5/665/WZB/2004/C-I dated 10.5.2004 in the case of M/s. Global Boards Ltd. v. CCE, Raigad.
3. After considering the submissions from both sides, we find that prima-facie provisions of the said Rule 57AD (1)/Rule 6(1) clearly provides that CENVAT credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods. We find that the adjudicating Commissioner has restricted the demand to the quantity of LSHS which is used for manufacture of exempted fertilizers. We also notice that he has allowed credit for LSHS which is used for manufacture of electricity. We also take note of the fact that the cited decisions [except the decision in the case of Global Boards Ltd. (Supra)] are not prima-facie applicable under the revised legal provisions and to the facts of this case. Following the earlier stay order passed by this Bench in the case of Global Boards Ltd. (Supra) we direct the appellants to pre-deposit an amount of Rs. 4 Crores within 12 weeks from today and report compliance on 16.8.2004, Subject to such pre-deposit being made and compliance reported, pre-deposit of the balance amount of duty and penalty shall remain waived during pendency of the appeal.
(Pronounced in Court)