TaxTMI 
TaxTMI 
2011 (7) TMI 971
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....he Customs, Excise and Service Tax Appellate Tribunal, Bangalore (hereinafter referred to as "CESTAT") in E. Appeal No. 1066/2005, dated 11-10-2006 [2007 (210) E.L.T. 241 (Tribunal)] which pertains to the period from May 2004 to November 2005 and Appeal 56/2007 is filed by the revenue being aggrieved by the order of the Tribunal in E. Appeal No. 543/2006 wherein the order which is impugned in CEA 57/2007 has been followed for the period from December 2004 to May 2005. 3. The appeals have been admitted for consideration of the following substantial question of law : "Whether the finding of the Tribunal that where one unit generates power and the neighbouring unit purchases the same, the inputs used for generation of power would be....
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.... 12 of erstwhile Cenvat Credit Rules, 2002 and Rule 14 of the Cenvat Credit Rules, 2004. Similar order was passed pertaining to the period December 2004 to May 2005 by the original authority rejecting the claim of the respondent regarding eligibility for availing credit under Cenvat credit and ordered that Rs. 48,99,321/- with interest under Rule 12 of erstwhile Cenvat Credit Rules 2002, read with Rule 14 of Cenvat Credit Rules, 2004, shall be levied. Being aggrieved by the same in both the appeals, the same assessee preferred appeals to the Tribunal and the Tribunal by order dated 26-10-2006 and 15-11-2006 allowed the appeals and upheld that the cenvat credit availed by the respondent by holding that what was paid by the respondent was the....
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.... only obligation to clause 7 of the notification, the liability is on the purchaser to make payment equal to duty leviable on consumables and raw materials, but for exemption of the duty thereon used for generating each unit of power sold in DTA on the basis of norms approved by the Board of Approval and wherefore the finding of the Tribunal which is based upon the said notification and the decision in Collector of Customs, Rajkot v. Sarabhai International Ltd., reported in 2000 (119) E.L.T. 6 (S.C.) is justified and wherefore the substantial question of law may be answered against the revenue. 8. We have given careful consideration to the contentions of the learned counsel for the parties and scrutinized the material on record. ....
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.... power of Domestic Tariff Area on payment of an amount equal to the duty leviable on consumables and raw materials but for the exemption of duty thereon, used for generation of each unit of power so sold in the domestic Tariff Area on the basis of norms approved by the Board of Approval; (ii) to transfer such surplus power to other export oriented undertaking or Software Technology Park (STP) unit or Electronic Hardware Technology Park (EHTP) unit or unit in special economic zone without payment of duty; Provided that both supplying and receiving unit shall maintain account for the quantity of consumables and raw material....
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...., the obligation of the respondents must be determined solely upon the basis of the said notification, dated 17th April, 1980. They were exempted form paying the "duty leviable" on the imported soda ash that they cleared into the Free Trade Zone by reason of that notification. It was a condition of that notification that they would pay on demand on the soda ash that they had not used in connection with the production of detergent power within the Free Trade zone an "amount equal to the duty leviable" thereon. In other words, it was clearly a condition of the said notification that the respondents would pay on the surplus soda ash the amount of the duty, which had not been paid thereon when the soda ash was cleared into the Free Trade Zone. ....