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TMI Blog2013 (9) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... city had been enhanced - Just because during the intervening period between installation of power generation machinery for generating additional power and installation of machinery for manufacture of sponge iron and other iron and steel products, the excess power being generated was being sold outside, the capital goods cenvat credit in respect of power generation machinery cannot be denied – Relied upon the case of CCE, Raipur Vs. HEG Ltd. [2009 (11) TMI 648 - CHHATTISGARH HIGH COURT], wherein it was held that cenvat credit would be admissible on the capital goods installed in the factory for captive power generation, even if, substantial portion of the electricity generated was being wheeled out to sister concern and was not being used i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2002 directed the Commissioner to file a review appeal for determination of the points as mentioned in the review order. Accordingly, the Commissioner filed a review appeal in terms of the provisions of Section 35 E (4) of the Central Excise Act, 1944. 1.1 This appeal was decided by the Tribunal vide Final Order No.A/452/2003 dated 5.9.2002 by which Revenue's appeal was dismissed. The Tribunal while dismissing the appeal observed that modvat credit cannot be denied to the respondent as the power plant installed is part of their expansion plan to enhance the production capacity of sponge iron and steel and ferro alloys for which more power would be required by them. 1.2 Against this order of the Tribunal, the department filed appeal un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Ms. Ranjana Jha, ld. Joint CDR, assailing the impugned order of the Commissioner and reiterating the points raised in the Revenue's appeal against the Commissioner's order, pleaded that during the period of dispute, the power generation by captive power plant already installed in the respondent's factory was more that the actual power consumption and, therefore, the new power generation machinery was used for generation of power which was sold outside, that the respondent for this purpose had entered into an agreement with the State Electricity Board for the sale of power, that since the electricity is not excisable product, the capital goods installed in the factory for generation of additional electricity, which was being sold outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the facts of the present case are identical to the facts of the case of HEG Ltd. (supra) decided by the Hon'ble Chattishgarh High Court, that the judgement of the Apex Court in the case of CCE Vs. Chennai Petroleum Corpn. Ltd. (supra), mentioned in the remand order dated 4.9.2012 of Chattisgarh High Court has absolutely no relevance to the issue involved in this case and that it is the judgement of the same High Court in the case of HEG Ltd. (supra) which is applicable to the facts of this case. He, therefore, pleaded that there is no merit in the Revenue's appeal. 7. The dispute in this case is about the machinery installed for augmenting the power generation in the captive power plant. There is no dispute that the machinery requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also find that the issue involved in the Apex Court's judgement in the case of Chennai Petroleum Corpn. Ltd. (supra) is totally different-whether Residual Fuel Oil (RFO) obtained as residue after distillation of crude oil for manufacture of petroleum products would be liable to excise duty, if such RFO was used as fuel for generating electricity and the electricity, instead of being used in the refinery, was sold to Tamil Nadu Electricity Board. The Apex Court held that to the extent electricity was sold out, RFO used in generation of such electricity would be liable to duty. The issue involved in this case is totally different-whether the power generation machinery can be said to have been exclusively used for manufacture of exempted exc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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