TMI Blog2014 (4) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... Misra, JJ. For the Appellant : Shri Vipin Jain, Adv. For the Respondent : Shri S Misra, Addl.Commr.(AR) Per: D M Misra: 1. This is an Application seeking waiver of pre-deposit of duty of Rs.10,67,40,103/- and equivalent amount of penalty imposed under Section 11AC of Central Excise Act, 1944. 2. Briefly stated facts of the case are that during November 2000 to January, 2004, the Applicant had removed Residual Fuel Gas (RFG), generated out of cracking of Naptha, to a separate company, M/s.HPL Co-Generation Ltd. (hereinafter referred to as HPLCL) situated in the same factory premises, for generation of electricity and steam, following the procedure laid down under Rule 57AC(5)(a) of Central Excise Rules or Rule 4(5(a) of CEN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) of the respective Rules. He has submitted that this Tribunal in their own case, vide Order No.433-434/05-NBA dated 28.01.2005, for the partially processed Naptha, namely CLS, after interpreting the same set of Rules has held that the Applicant were eligible to avail the procedure laid down under Rule 57AC(5)(a) or Rule 4(5)(a) of the said Rules as applicable during the relevant period. Further, he has submitted that the entire procedure of procurement of Naptha, its use as 'input' in or in relation to the manufacture of final products and details regarding removal/movement of RFG to HPLCL situated in the same factory premise, for generation of electricity and steam, and further use of the electricity and steam so generated in their fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on removal of partially processed Naptha (CLS) to M/s HPLCL during the period Nov.2000 to Oct.2002 under Rule 57AC(5)(a) of erstwhile Central Excise Rules or Rule 4(5)(a) of CENVAT Credit Rules, for generation of steam or electricity and which were received back by the Applicant and used in the manufacture of final products, rejected the contention of Revenue and held that duty is not payable on partially processed CLS and the Applicant were eligible to avail the procedure laid down under Rule 57AC of Central Excise Rules or Rule 4(5)(a) of CENVAT Credit Rules, 2001/2002 during the said period. Even though the Ld.Commissioner has considered the said judgement, but not followed it observing that the said case was different from the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f duty. A small portion of the Naphtha, either as such, or after being partially processed (internally known as CLS comprising NRS/Py Gas/C-6 Raffinate etc.) is also sent to a power plant for generation of electricity or stream, which are in turn used for production of the final products within the appellant's factory". 8. After detailed discussion on all the issues raised, it has been held as: "24. We, therefore, hold that the appellant was entitled to take Cenvat credit on the duty paid on Naphtha, sent as such, or after being partially processed (CLS) to the power plant for generation of steam or electricity, which was sent to the petrochemical complex of the appellant for use or in relation to the manufacture of final products un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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