TMI Blog2008 (6) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... s to two major issues. 2.2 The relevant facts relating to the first issue are as follows : (a) The appellant manufactures various dutiable products; they also manufacture non-dutiable product coke and they use lubricating oils and grease which are common inputs. They took credit on these common inputs. They did not maintain separate accounts for the quantity of these inputs which were used in relation to the manufacture of coke. After commencement of investigation by the authorities, they reversed proportional credit involved on the inputs attributable to such exempted coke. The credit involved and which stands reversed amounts to Rs. 36,658/-. (b) Since common inputs were used and no separate accounts were maintained, an am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved back for use in the same factory appears not correct. However, the Tribunal in the case relating to Rourkela plant has held contrary finding. Relevant portion of the said order is reproduced below : 6. In the present case, initially the power plant was also part of the steel mill and was also owned by Steel Authority of India Ltd. The deed of March, 2001 whereby power supply company was hived off into a new company through transfer of a certain business, was part of a restructuring exercise only. This is clear from clauses A, B, C and D of the deed. Other clauses in the deed also make clear that what is involved is not sale and alienation of assets; but transfer on assignment. The sale was only to ensure that the new entity had enou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sale, to other parties, cannot continue to enjoy Modvat Credit benefit. 9. The learned Counsel would point out that the above contention is not sustainable at all in the light of the judgement of the Hon ble Supreme Court in the case of Vikram Cement [2006 (197) E.L.T. 145 (S.C.)] and the decision of this Tribunal in the case of Corromandel Fertilizers Ltd. v. CCE [2007 TIOL 09 CESTAT-Bang] It is being pointed out that the Hon ble Supreme Court and the Tribunal had held that the expression used in the factory cannot be interpreted so as to exclude capital goods deployed outside the factory premises for bringing raw materials into the factory premise. It is also being pointed out that in the case of Haldia Petrochemicals Ltd. v. CCE, Haldi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the capital goods outside the factory premises is no ground for denying the credit. While passing this order, Tribunal was 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, in spite 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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