Parry Engineering & Electronics P Ltd vs C.C.E.-Ahmedabad-Ii

[ Arising out of OIA-132/2011-AHD-II-CE/CMC/COMMR-A-/AHD Dated 28/04/2011, OIA-COMMR-A--214-VDR-I-2011 Dated 18/05/2011, OIA-98-2011-AHD-III-DSINGH-COMMR-AAHD Dated 01/07/2011, OIA-COMMR-A--242-VDR-I-2011 Dated 27/06/2011, OIA-13-14-2012-BVR--COMMR-A--RBT-RAJ Dated 17/02/2012, OIA-59-60-2012-AHD-III--KANPAZHAKAN-COMMR-AAHD Dated 07/03/2012, OIA-51-2012-AHD-II-CE-MM-COMMR-AAHD Dated 16/02/2012, OIA-33-34-2013-BVR-SKS-COMMR-A-AHD Dated 05/03/2013 Passed by Commissioner of Central Excise-AHMEDABAD-II, Commissioners of Central Excise, Customs and Service Tax-VADODARA-I, Commissioner of Central Excise-AHMEDABAD-III, Commissioner of Central Excise-VADODARA-I, Commissioner of Central Excise-RAJKOT, Commissioner of Central Excise-RAJKOT]

Parry Engineering & Electronics P Ltd Zydex Industries Victory Ceratech Pvt Ltd Prayas Engineering Ltd Meghdev Enterprises Gopal Glass Works Pvt Ltd : Appellant(s)

Vs

C.C.E.-Ahmedabad-ii C.C.E. & S.T.-Vadodara-i C.C.E. & S.T.-Ahmedabad-iii C.C.E. & S.T.-Rajkot : Respondent (s)

Represented by :

Appellant(s) : Shri S.J. Vyas (Advocate), Shri V.B. Joshi (Advocate), Shri D.K. Trivedi (Advocate), Shri Rahul Gajera (Advocate) Respondent (s) : Shri Alok Srivastava (Aurhorised Representative)

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M.Saleem, Honble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M.Saleem, Honble Member (Technical)

Date of Hearing / Decision : 04/09/2015

ORDER No. A/11551-11560/2015 Dated: 04/09/2015

Per : Mr. P.K. Das,

Common issue is involved in these appeals, and therefore, all are taken up together for disposal.

2. The appellants were engaged in the manufacture of various excisable goods at their factories, situated at various places of Gujarat. The appellants had taken Cenvat Credit of input service on installation and erection of wind mills which are located far away from factory. The electricity generated in the wind mill were transferred at the factory of the appellants by Gujarat Energy Transmission Corporation Ltd. Revenue is of the view that the appellants are not eligible of Cenvat Credit on input service in the electricity generated in wind mill, away from factory premises.

3. We find that the issue is no more res integra in view of the decision of the Honble Bombay High Court in the case of Commissioner of Central Excise and Customs, Aurangabad Vs. Endurance Technology Pvt. Ltd. 2015-TIOL-1378-HC-MUM-ST(Tri). Further, the present appeals were referred to the larger bench by the Divisional bench to decide the issue whether the assessee is eligible to avail Cenvat Credit of an amount paid as Service Tax by a Service provider in respect of installation and erection, maintenance or any other services rendered at wind mills, which are located away from the factory premises and electricity generated out of such wind mills is consumed at the factory premises after such power is to put through the common grid. The larger bench of the Tribunal by interim order no. 344-353/2015 Dated 29/07/2015 answered, the issue in favour of the assessee.

4. The Learned Authorised Representative on behalf of the Revenue submits that in one of the appeals, it was held that electricity is a non-excisable product. He submits that this issue was not placed before the Hon,ble High Court and the Larger Bench. S.G. Vyas, the Learned Advocate submits that the Tribunal in the case of M/s. Birla Corporation Ltd. Vs. CCE, Lucknow [2013 (11) TMI 987  CESTAT New Delhi] allowed the appeal on the identical issue. The Tribunal held that the services availed for erection/commissioning, maintenance or repair and insurance of the Fly Ash extraction plants installed by the appellants at the Thermal Power Plant, these services have to be treated as the services used for the manufacture of cement by the appellant and would be eligible for Cenvat Credit. In the present case, there is no dispute that the electricity generated by the wind mill was used in the manufacture of the excisable goods, which was cleared on the payment of duty.

5. The other aspect of this matter is that the Honble Bombay High Court in the case of Endurance Technologies Pvt. Ltd (Supra) decided this issue in favour of the assessee which was followed by the larger bench of the Tribunal in the present appeals. So, it is incumbent on the Division Bench to follow the decision of the Larger Bench and the High Court. The Honble Punjab and Haryana High Court in the case of M/s. AB Sugars Ltd. Vs State of Punjab and another. 2015 (8) TMI-62 Punjab and Haryana held as follows:-

Keeping the doctrine of precedent in mind we are not entitled to take a different view based on Mr. Goels additional submission founded on the provisions of the Punjab Sugarcane (Regulation of Purchase and Supply) Act, 1953. In Suganthi Suresh Kumar V. Jagdeeshan (2002) 2 Supreme Court Cases 420, the Supreme Court held that the High Court cannot question the correctness of the decision of the Supreme Court even though the point raised before the High Court was not considered by the Supreme Court. In Director of Settlements A.P. and others v. M.R. Apparao and another (2002)4 Supreme Court Cases 638, the Supreme Court held that the decision in a judgment of the Supreme Court cannot be assailed on the ground that certain aspects were not considered by, or that relevant provisions were not brought to the notice of the Supreme Court. it was further observed that once the Supreme Court decides the principle it would be the duty of the High Court to follow the decision.

6. Hence, we do not find any reason to take the different view as taken by the Honble High Court and the larger bench. Shri Rahul Gajera appearing on behalf of appellant submits that in their case, the demand of duty is for the extended period. As the appeals are required to be allowed on merit, there is no need to go into limitation.

7. In view of the above decisions, we set aside the impugned orders. The appeals filed by the appellants are allowed.

(Dictated and pronounced in the Court) (P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) Abhishek ??

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