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TMI Blog2010 (5) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... hargeable to duty @ 20%. He takes us through the Power Purchase Agreement, the respondents have made with the India Cements Ltd. (ICL), under which the latter is required to purchase the entire electrical energy generated by the respondents (CECL). He also takes us through the Electricity Act, 2003 and the Electricity Rules, 2005 and states that since M/s. ICL and its subsidiary M/s. ICL Financial Services have 49.2% of the share capital of M/s. CECL, both are not independent entities. He states that under Rule 3 of the Electricity Rules, 2005, having more than 26% of the ownership, the power generating plant run by M/s. CECL has to be held as captive power plant of M/s. ICL. He also cites the decision of the Hon'ble Supreme Court in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be such as set up by projects engaged in activity other than in power generation whereas M/s. CECL had no other activities. The learned counsel states that both the cited decisions relate to cases of non-registration under project import whereas in the present case the registration has already been done under Project Import Regulations. 4. We have considered the submissions from both sides as well as the case records and the cited decisions. We find that the Hon'ble Supreme Court in the case of Indian Charge Chrome (supra) has considered at length the difference between a power project and a captive power plant in paragraph 13 of the order, as follows:- "The captive 'power plant' cannot be considered as 'power project' and the two c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-company. Further, as demonstrated in the detailed order passed by the original authority, they control the entire affairs of the respondent-company. Under Rule 3 of the Electricity Rules, 2005 also, the impugned power plant has to be considered as captive power plant since the captive user namely M/s. ICL has more than 26% of the ownership of the respondent-company and it consumes more than the specified 51% of the electricity generated. No evidence on the other hand has been brought before us to demonstrate that the impugned power plant can be considered as a general power project of the kind distinguished in the Hon'ble Supreme Court's order cited above. 6. Coming to the other argument of the respondents that they were regist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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