TMI Blog2017 (1) TMI 293X X X X Extracts X X X X X X X X Extracts X X X X ..... rity of the High Court as well as in several Tribunal decisions including in respect of another unit of respondent. Under the circumstances, we find no infirmity in the order passed by the ld. Commissioner who has held that no amount is required to be paid under Rule (4) on capital goods as there has been no removal and dropped the demand of central excise duty - appeal dismissed - decided against Revenue. - Central Excise Appeal No. 2421 of 2007 - A/55927/2016-EX[DB] - Dated:- 20-12-2016 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Technical Member Shri Amresh Jain, A.R. for the Appellant-Revenue Shri Amit Jain with Shri Vipul Agarwal, Advocates ORDER Per V. Padmanabhan The present appeal filed by Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am purchase agreement whereby M/s BESCL was to supply the electricity generated to SAIL. 5. Department took the view that since the respondent and M/s BESCL are separate legal entities, the inputs and capital goods which were transferred by the respondent to M/s BESCL stood removed and that the respondent was required to pay an amount equal to the duty of excise which is leviable on such inputs and capital goods installed in the captive power plant on which cenvat /movat was taken, in terms of Rule 3(4) of the Cenvat Credit Rules, 2002.Department relied on registration of M/s BESCL as a separate factory with the Chief Inspector of Factories, Chhaittisgarh and took the credit that the transfer is liable to be termed as removal. 6. Show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factory even after leasing out the captive power plant and the goods continued to remain within the approved factory premises of the respondent. Having decided the issue in favour of the respondent, on merits, ld. Commissioner did not decide the issue of limitation. 9. Against the above order passed by the ld. Commissioner, the present appeal has been filed by the Department, on the following grounds: (i) Respondent and M/s BESCL are two separate legal entities and the land leased out by the respondent to M/s BESCL ceases to fall within the factory premises of the respondent.Therefore, on transfer of captive power plant, the inputs and capital goods stand removed in favour of M/s BESCL, and physical removal of the goods is not the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing case laws: * Steel Authority India Ltd. vs C.C.E., Raipur 2016 (332) ELT 825 (Tri0 Delhi); * Steel Authority of India Ltd. vs. C.C.E.,Bhubawa 2007 (219) ELT 96 (Tri-90); * L G Balakrishnan and Bros vs. C.C.E., Trichy 2016 TIOL 2356 CESTAT MAD. * J.K. Spinning Weaving Mills Ltd. and Another vs. UOI and others 1987 (32) ELT 234 (SC). 12. It is an admitted fact that of the case that there was no physical removal of the capital goods from the factory of the respondent. The central point for consideration is whether the amount is required to be paid under Rule 3(4) of the Cenvat Credit Rules is to be paid by taking such capital goods as removed from the factory. Revenue relied upon the decision of the Hon ble Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng as untenable. Further, regarding question of issue of invoice by the appellant for sale and transfer of capital goods and inputs to the new legal entity, we find on perusal of sample invoice that these are not invoices in terms of Rule 11 of Central Excise Rules, 2002. The appellant contended that the goods were identified with value for the purpose of business transaction and not for sale transaction in terms of Sales Tax or Central Excise provision. We note that the invoices issued did not contain the details of any removal, mode of transport, rate of duty, duty payable thereon etc., as per the requirement of Rule 11 (2) of Central Excise Rules, 2002. We also note that based on these invoices no credit can be availed by any buyer as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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