TMI Blog2017 (2) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... 367 - SUPREME COURT OF INDIA [1988 (7) TMI 367 - SUPREME COURT OF INDIA] followed. - decided in favor of appellant. - Excise Appeal No. 956/2008, 1358/2008, 381/2009, 393/2009, 1397/2010, 1206/2009, ST 436/2008 and 802/2009 - Final Order No. 56348-56356/2016-EX[DB] - Dated:- 30-12-2016 - Ms. Archana Wadhwa, Judicial Member and Mr. Manmohan Singh, Technical Member Shri B.L. Narsimhan, Advocate for the Appellants Ms. Shweta Bector, AR for the Respondent ORDER Per Archana Wadhwa (for the Bench) : All the appeals are being decided by a common order as the issue involved in all of them is identical. 2. The short issue involved is as to whether the appellant is entitled to the Cenvat credit of duty paid on the inputs and input services utilized at their Captive Power Plant, which is located at Renusagar, almost 50 KM away from the factory. Though, the learned advocate has drawn our attention to various decisions but we find that the said issue stands decided in the appellant own case reported as M/s Hindalco Industries Ltd. Vs. CCE, Allahabad final order No. 561/2011-EX(BR) dated 07.05.2012. For better appreciation, we reproduced the conclusive portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent assessee, Modvat/Cenvat credit on capital goods used in such mines will not be available to the concerned assessee under the appropriate Modvat/Cenvat Rules. The matters are remanded to the respective original authorities for decision only on the above issue. 13. In this case, since as discussed above, the Renusagar Power Plant is a captive power plant of the Appellant's manufacturing unit, the two have to be treated as one intergrated unit and therefore, the Cenvat credit of service tax paid on insurance policy for the power plant would be admissible. 14. The result of the above discussion is that impugned order of Commissioner (Appeals) is not sustainable in law. Appeal is accordingly accepted and the impugned order is set aside. 3. Inasmuch as the issue stands decided in the appellant's own case, we set aside the impugned order and allow all the appeals with consequential relief to the appellant. (Archana Wadhwa) Member (Judicial) (Manmohan Singh) Member (Technical) Hindalco Industries Ltd. E/956/2008 PER: MANMOHAN SINGH I have gone through proposed order prepared by the Member (J), which involves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its facts and a close similarity between one case and another is not enough because either a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. 5. I am making a reference to these lines as I feel that the cases of State of UP and ors. v. Renusagar Power Company and Vikram Cements v. CCE, Indore, which are the basis for the decision of this Tribunal, did not deal with identical facts and the ratio thereof was applied by extended logic completely ignoring the law governing availability of input service credit to a manufacturer. I have explained the reason for coming to this conclusion at appropriate places in the following Paras. 6. Now coming to the distinguishing facts, I would like to point out that Hindalco Industries Limited (Hindalco) and Renusagar Power Company Limited (Renusagar) are two distinct legal entities, the later being a subsidiary of the former. The Plant of Renusagar is locate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ering the fact that the State Government and the Electricity Board themselves were treating these two as one in the matter of power cuts. The very fact that the Hon'ble Supreme Court had to lift the corporate veil leads to conclusion that they are two distinct legal entities. It was only after considering the conduct of the State Government and the Electricity Board that the Hon'ble Supreme Court took a view that in the given circumstances Renusagar was to be regarded as the own source of generation' for Hindalco. 11. The Service tax authorities in the present matter have not treated them to one and the same unit for any purpose. On the contrary they have been attempting to deny credit by holding that they were two distinct units. Since there is no provision in the Cenvat credit Rules for permitting credit of service tax on the input services received in respect of or by a subsidiary company, I am of the view that there is no warrant to import the ratio of the aforesaid judgment to hold that for the purposes of Cenvat Credit also, they have to be regarded as one unit, as held in the order dated 07.05.2012 and as is being proposed now on the basis of the said order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rning availability of Cenvat credit. There is no scope for any intendments. The fact remains that power plant belongs to subsidiary company of Hindalco and is located at a distance of about 50 kms. Can we say with certainty, without adverting to the ratio of the aforesaid judgments, that Renusagar belonging to its subsidiary company is a captive power plant of Hindalco and that such a plant belonging to a subsidiary, located at distance of 50 kms., can be regarded as constituting one integrated unit with Hindalco's factory ? 15. If we come to a positive answer based on the facts and facts alone then only the ratio of these judgments can be of help in allowing credit. In my opinion under the given circumstances, where power plant does not belong to Hindalco and is located at a distance of about 50 kms., neither can the power plant be regarded as a captive power plant of Hindalco nor can it be regarded as constituting one integrated unit with Hindalco's manufacturing unit. 16. In view of above discussions and findings, I do not agree with the conclusions drawn by the learned Member (J) and record my difference. (MANMOHAN SINGH) MEMBER(TECHNICAL) Diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber (Technical). The power plant is not a separate legal entity. It is a division of appellant company and is part and parcel of the appellant unit. The Id. AR on the other hand contended that there are separate financial accounts for the power plant and the manufacturing unit and hence these two are not to be considered as belonging to same legal entity. The power plant belongs to a group company of appellant. 6. I find that Hon'ble Supreme Court in (1988) 4 SCC 59 observed: 69. In the facts of this case Hindalco and Renusagar were inextricably linked up together. Renusagar had in reality no separate and independent existence apart from and independent of Hindalco. 70. .We are therefore, of the opinion that in the facts of this case the corporate veil must be lifted and Hindalco and Renusagar should be treated as one concern and if that is taken the consumption of energy by Hindalco must be regarded as consumption of energy from its own source of generation ' The Hon'ble Delhi High Court in their order dated 09.07.1993 followed the above decision in allowing exemption to electricity supplied by Renusagar to appellant. In any case, further developme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no dispute about the fact that though initially the power plant was owned by M/s Renusagar Power Company, this company has been amalgamated with the appellant company in the year 1993 and the merger had been confirmed by the Hon 'ble High Court during that year. Thus, during the period of dispute the Renusagar Power Plant was fully owned by the appellant company.. 6.3 We are of the view that the ratio of the above-mentioned judgments of the Apex Court are squarely applicable to the facts of this case, as the Renusagar Power Plant, which is a captive power plant of the appellant company, together with cement factory of the appellant company constitute one integrated unit.... . 8. The same issue was subject matter of decision by Tribunal in another case of appellant vide Final Order No. A/561/2011 -EX(BR). Dated 07.05.2012. I find in view of factual position as explained above there is no ground or reason to deviate from the earlier decisions of the Tribunal. The factual error in finding of Member (Technical) has been taken note and discussed above. 9. Ld. AR relied on a stay order of Tribunal in appellant's own case - 2013 (292) ELT 416 (Tri. Del.). I note ..... X X X X Extracts X X X X X X X X Extracts X X X X
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