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TMI Blog2025 (2) TMI 181X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. D.N. Panda, Advocate. Mr. D. Saraf, Advocate. For the Respondent(s) : Mr. S.C. Keyal, Sr. S.C., CBDT, IT (NER). JUDGMENT & ORDER (CAV) (VIJAY BISHNOI, CJ) The instant excise appeal is preferred by the appellant, namely, Brahmaputra Cracker & Polymer Limited (hereinafter to be referred as "the appellant Company") being aggrieved with the decision dated 15.01.2020 passed by the Custom, Excise and Service Tax Appellate Tribunal (CESTAT), Kolkata (hereinafter to be referred as "the Tribunal") in Excise Appeal No.75336/2018 whereby the Tribunal rejected the appeal filed on behalf of the appellant Company against the order dated 26.10.2017 issued by the Commissioner of CGST and Central Excise, Dibrugarh (hereinafter to be referred as "the Commissioner"). 2. This Court, on 03.12.2020, framed the following substantial question of law for appropriate answer: "Whether the gas plant located at Duliajan belonging to the appellant, which supplies gas for manufacturing polymers at Lepetkata forms part of the manufacturing unit at Lepetkata so as to enable appellant to claim Cenvat Credit on capital goods installed at Duliajan?" 3. The brief facts of the case are that the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o avail CENVAT Credit on capital goods which were used in Duliajan Unit. Along with the letter dated 26.10.2017, a communication dated 26.09.2017 is also annexed wherein it is mentioned that the request of the appellant Company for issuing single Registration for Lepetkata Unit and Duliajan Unit is not accepted and the appellant Company is also not entitled to claim CENVAT Credit on capital goods which is used at Duliajan Unit as the same is not registered. 6. Being aggrieved with the decision of the Commissioner, the appellant Company approached the Appellate Tribunal by way of filing an appeal, being Excise Appeal No.75336/2018. 7. The Tribunal framed two issues for determination, which are reproduced hereunder:- "(a) Whether they are eligible for common registration for their Duliajan plant and Lepetkata plant by inclusion of the former in their registration certificate already issued for the latter. (b) Admissibility of CENVAT Credit on the capital goods received in their Duliajan plant based either on common registration or irrespective of the registration." 8. Both the issues were decided against the appellant Company by the Tribunal while concluding that one registr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in 2014 (306) E.L.T. 455 (Mad.). It is argued that in the above referred decisions, the Hon'ble Supreme Court as well as the Division Bench of Madras High Court has held that if any material is supplied for the purpose of manufacturing the final product, it is irrelevant that the same is supplied by a plant or factory not situated in the manufacturing plant but even if a raw material is supplied from a plant which is far from the manufacturing unit, the same is liable to be treated as part of the manufacturing unit. 14. Learned counsel appearing for the appellant Company has, therefore, prayed that the substantial question of law framed in this appeal be answered in the affirmative and the appeal filed by the appellant Company be allowed. 15. Per contra, Mr. S.C. Keyal, learned Sr. S.C., CBDT, IT (NER), appearing for the respondent-Revenue has vehemently opposed the appeal and has argued that the Tribunal as well as the Commissioner has rightly rejected the request of the appellant Company for availing CENVAT Credit on capital goods (both domestic and imported) used at the Duliajan Unit because the said Unit is situated around 48 Km away from the manufacturing unit whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e raw material to the manufacturing unit. The relevant portion of the decision rendered by the Division Bench of Madras High Court in Habasit Iakoka (P) Ltd. (supra) is reproduced hereunder: "3. The respondent assessee availed Modvat credit in respect of capital goods used in the manufacture of a Leather Nylon Sandwitch Betlings in its registered factory. By order dated 12-6-2000, the original authority held that the respondent had two units namely (1) Central Excise registered factory producing excisable final products and (2) another unit called Mother Roll Plant which was not registered under the Central Excise Rules; that they purchased capital goods and installed in their registered factory and took the credit of duty paid thereon; that subsequently for want of space, they shifted the machinery to their another Unit namely Mother Roll Plant which was situated 500 mts away from the registered unit and that at the time of removal of capital goods, they neither obtained permission nor reversed the credit of duty taken on the said capital goods. The department reversed the credit amount of Rs. 87,976/-. The claim made by the respondent assessee for refund of the said amount w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Rules, 1944. 5. Going by the above report of the Department, I have to hold the Mother Roll Plant, is for all practical purposes, a part of the appellants' main factory. Whether it is included in the main factory plan is a concern of the department and this aspect can be separately taken care of by them. For the present, I can reasonably state (sic) that the subject capital goods were used by the appellants in the factory of production of final products and, accordingly, the appellants were entitled to avail Modvat credit of the duty paid thereon, under Rule 57Q. The decision in Thermax Ltd. (supra) is in firm support of this view. 5. Learned counsel for the respondent brought to our notice, the decision of the Tribunal reported in 2006 (196) E.L.T= 2007(8) S.T.R. 318 (Tribunal) Pooja Forge Ltd. v. Commissioner of Central Excise, Faridabad, wherein the Tribunal, in the circumstances, has taken a similar view in tune with the vies of the order of the Tribunal impugned in this appeal. 6. Going by the above finding of the Tribunal, we are also convinced that there was no violation of Rule 57Q (1) of the Central Excise Rules, Rule 57Q (1) reads as under: " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the main unit of the appellant Company is located at Lepetkata whereas associated facilities are situated at different locations. Para No. 2 of the order dated 26.09.2017, which narrates the facts about the appellant units after due verification, is reproduced hereunder: "2) During verification of the claim it appeared that the main plant of BCPL is located at Lapetkata along with some establishment/associated facilities at other places within the state as under: 1. Gas Sweetening and C2+ Recovery Unit at Lakwa, (Manufacture Excisable Product, i.e. C2+ Liquid & a separate registration has already obtained under pre-GST regime. 2. Gas Dehydration Unit at Duliajan; (Compressor & pipelines are intractably linked to Main Lepetkata plant for Supply of Rich Gas and return of lean gas to Oil India) 3. Naptha unloading facilities at Tinsukia Gaon (Railway siding is set up to upload Naptha (input) for Main Lepetkata Plant." (Emphasis Supplied) 25. Now we examine the Circular dated 16.10.2008, relied upon by the counsel for the Revenue, Mr. Keyal as well as by the Commissioner. It is apposite to quote the relevant portion of the Circular dated 16.10.2008: "Circular No.875/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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