TMI Blog2010 (6) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent. [Order per: Justice R.M.S. Khandeparkar, President (Oral)]. - Heard the learned advocate for the appellants and the learned DR for the respondent. 2. The matter has been placed before this Larger Bench pursuant to the order dated 16.06.2008 [2009 (536) E.L.T. 711(Tri.- Del.)] passed by the Division Bench. In the said order, the following issues were sought to be referred to a Larger Bench : (1) Whether, inspite of transfer of assets by way of sale to the newly formed company the power plant which was earlier with the appellant can be treated as a captive power plant? (2) Whether transfer of goods to the newly formed subsidiary company has to be treated as on sale or otherwise? Whether transfer of goods from subsidiary company to SAIL to be treated as on sale or otherwise? (3) Whether the provisions of Rule 6 (3)(b) of the Cenvat Credit Rules, 2002 are applicable or not? 3. As regards issue no. 3, it is undisputed fact that the same already sands answered by the decision of the Bombay High Court in the matter of Commissioner of Central Excise vs Nicolas Piramal (India) Ltd., reported in 2009 (244) ELT 321 (Bom.). 4. As regards first two issues ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about Rs.5.9 crores. 3. Regarding the first issue, the learned advocate submits that in as much as they have reversed the proportional credit involved, the demand can not be sustained. He draws our attention that similar issue "whether the provisions of Rule 6 (3)(b) of the Cenvat Credit Rules, 2002 are applicable or not, when the amount equivalent to the Cenvat credit attributable to the inputs used in, or in relation to, the manufacture of the exempted final product has been paid prior to the removal of the exempted final product from the factory" has been referred to the Larger Bench in the case of M/s. Nicholas Piramal (India) Ltd. reported in 2008 TIOL-614-CESTAT-MUM 4. Regarding the second issue, the learned advocate submits that the power plant is within the factory premises of the SAIL; it is only a captive power plant of SAIL though the ownership of the same was transferred to BESCL, a subsidiary of SAIL; the entire power generated by BESCL requires to be sold to SAIL except any surplus power which can be sold to others with the concurrence of the SAIL. The captive power plant maintained by BESCL is being treated as captive power plant for the purpose of levy of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... teel mill. We find that this factual aspect are almost identical to the case of Renusagar Power Mill's and in the light of judgement of Hon'ble Supreme Court, this is not a case of sale of the power plant. 7. Another question which has come up is that Modvat credit is available to capital goods only when they are used in the factory of manufacture of the final product. This is in view of (Rule 57Q of Central Excise Rules) the provision that the item is 'used in the factory of the manufacturer of final products'. The contention of the learned SDR is that, after the separation of the power plant, the steel mill had submitted a separate ground for the factory from which the power plant was excluded. The contention is that it is clear from the revised ground plan that the rotor in question used in the power plant is not used in the factory of the manufacturer. 8. The learned SDR has also placed reliance on the decision of this Tribunal in the case of CCE, Jaipur-I v. Shree Prithvi Rolling Mills (P) Ltd.[2003 (58) RLT 6 (Tri-Del)] and Majestic Auto Ltd. vs. CCE, Ghaziabad [2004 (173) ELT 145 (Tri- Del)]in support of his contention that capital goods which are taken out of the factor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following the ratio of Supreme Court ruling in Vikram Cement (supra) case. In the light of these decisions, there is no merit in the contention that the rotor in question was located outside the steel mill premises." 7. As we are not, prima facie, in agreement with the above views expressed by the Tribunal, we refer the appeal to the Larger Bench for answer to the following question:- (1) Whether, inspite of transfer of assets by way of sale to the newly formed company the power plant which was earlier with the appellant can be treated as a captive power plant? (2) Whether transfer of goods to the newly formed subsidiary company has to be treated as on sale or otherwise? Whether transfer of goods from subsidiary company to SAIL to be treated as on sale or otherwise? (3) whether the provisions of Rule 6 (3)(b) of the Cenvat Credit Rules, 2002 are applicable or not 8. Record may be placed before the President for constituting the Larger Bench . 9. Meanwhile, in view of the fact that first issue is before the Larger Bench in the case of M/s. Nicholas Piramal (India) Ltd. and in respect of second issue, the matter is prima facie decided in favour of the appellant in their o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court ruled thus: "8. There is no doubt that the Tribunal functions as a court within the limits of its jurisdiction. It has all the powers conferred expressly by the statute. Furthermore, being a judicial body, it has all those incidental and ancillary powers which are necessary to make fully effective the express grant of statutory powers. Certain powers are recognised as incidental and ancillary, not because they are inherent in the Tribunal, nor because its jurisdiction is plenary, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. The powers of the Tribunal are no doubt limited. Its area of jurisdiction is clearly defined, but within the bounds of its jurisdiction, it has all the powers expressly and impliedly granted. The implied grant is, of course, limited by the express grant and, therefore, it can only be such powers as are truly incidental and ancillary for doing all such acts or employing all such means as are reasonably necessary to make the grant effective. As stated in Maxwell on Interpretation of Statutes, (eleventh edition) where an Act confers a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the President. That power should be construed to be wide enough to enable the President to make a reference where members of a Bench find themselves unable to decide a case according to what they perceive to be the correct law and fact because of an impediment arising from an earlier decision with which they cannot honestly agree. In such cases, it is necessary for the healthy functioning of the Tribunal that the President should have the requisite authority to refer the case to a larger Bench. That is a power which is implied in the express grant authorising the President to constitute Benches of the Tribunal for effective and expeditious discharge of its functions." 9. The decision of the Apex Court in Paras Laminates case (supra), apparently, discloses that, the Tribunal like any other Court, is expected to have due regard to the decision already delivered by the Tribunal on an identical issue. The rationale behind the same being to have continuity, certainty and predictability in the administration of justice. It is essentially to strengthen the confidence reposed by the citizens in the justice delivery system prevalent in the country. This, however, does not mean that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise only upon hearing the parties on merits of the case. It cannot be merely a prima facie view which would justify reference of the matter to a Larger Bench. It will be totally contrary to the well established procedure regarding justice delivery system which expects continuity and certainty in the decisions unless there is justifiable reason to take a contrary view on the identical issue. 12. The occasion for reference of the matter to a Larger Bench can also arise when the Tribunal hearing a matter on an issue is faced with two different orders of two different Benches of the coordinate jurisdiction taking two different views on an identical issue. Reference to a Larger Bench can also be justified in a case where a substantial question of public importance relating to the matters which fall within the jurisdiction of the Tribunal arises and the referral Bench is able to express valid reasons for the decision of the Larger Bench on such issue. 13. In Pradip Chandra Parija vs Pramod Chandra Patnaik, reported in 2002 (144) ELT 7 (SC), the Apex Court had clearly held that, if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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