TMI Blog2006 (10) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacture excisable goods. M/s. Forbes Gokak Ltd. is a 100% EOU. The appellant availed Cenvat credit on the amount paid on purchase of power from M/s. Forbes Gokak Ltd. for the period from May 2004 to November 2004. M/s. Forbes Gokak Ltd. sold excess power generated by them to the appellant and, therefore, the appellant paid an amount equal to the duty leviable viz. Rs. 61,38,256/- on the raw materials and consumables, but for exemption thereon, used for generation of each unit of power sold in Domestic Tariff Area in terms of Notification Nos. 52/2003-Cus., dated 31-3-2003 and 22/2003-C.E., dated 31-3-2003. According to Revenue the credit taken is irregular. The original authority denied the credit taken and demanded the amount along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another unit of the self-same company and therefore, there was no "sale" and the provisions of the notifications cannot be invoked to allege that there was sale. The appellant is relying on a letter of the Government of Karnataka dated 26-5-2004, wherein it has been stated that the DTA unit and the Electricity generation plant are in the same premises and no permission was necessary. The appellant has further enclosed the Registration Certificates issued by various authorities of the Government of India which have registered both the Appellants unit as one legal entity. (iv) That an "amount equal to duty" paid while transferring power by the EOU to the DTA unit, on which the credit has been availed, is nothing but "duty foregone at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 2004 (116) ECR. 733 (T) (i) Wheel Axle Plant v. CCE - 2003 (161) E.L.T. 843 (T) (vii) The appellant further relies on the latest decision of the Tribunal in Indian Oil Corporation Ltd. v. CCE [2006 (205) E.L.T. 411 (Tri.) = 2006 (72) RLT 333 (T)] wherein it was held that the appellants were entitled to avail Cenvat credit on "inputs used in the manufacture of steam" which steam was ultimately used for the manufacture of final products. 5.The learned JDR urged that since electricity is non excisable, no Cenvat credit can be taken on the amount paid and further, he said that this amount does not represent duty. Hence, the impugned order is legally correct. 6.We have gone through the records of the case carefully. The Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in two cases of M/s. Diamond Cements is not attracted. The fact that the appellants are manufacturers of excisable goods is not in dispute. By law, they are entitled to avail Cenvat credit on inputs. The Commissioner himself has stated that credit would be given in case the assessee directly purchases the raw material for generation of electricity. An interesting case came up before CESTAT, Chennai in the case of SRF Ltd. v. CCE, Chennai (cited supra). Furnace Oil was used in the generation of electricity in one unit. However, the electricity so generated was not only used in the unit which generated it but partially in other units of the appellants. The Tribunal held that use of electricity in production of final goods in another facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al products, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used for manufacture of final products or for any other purpose, within the factory of production." In the present case, even though the appellants themselves have not produced power which is used for the manufacture of final products, they discharge the duty liability on the inputs used for generation of power by making payment equal to the duty on the inputs. In other words, for purposes of Cenvat, it can be interpreted that the appellants actually paid the duty on the inputs, even though the inputs were used actually in the 100% EOU for generation of electricity. Revenue wants to deny the credit on the ground that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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