Judgment:
Gowri Shankar, Member (Technical) 1. Essar Steel Ltd., Hazira was engaged in the manufacture of hot briquetted iron, hot rolled coils and other products of iron and steel.
The electricity required for running the mill was provided by Essar Power Ltd., Hazira located nearby, the power being generated by the turbines which were fuelled by natural gasoline liquid or naphtha.
Essar Steel ltd. (ESL for short) purchased NGL and naphtha and supplied it to Essar Power Ltd. (EPL for short). it took the credit of the duty paid on the fuel after furnishing to the department the intimation to this effect required by Sub-rule (3) of Rule 57F.2. The notice dated 2.5.2001 issued to ESL alleged that it had incorrectly taken credit to the extent of Rs. 24.55 crores during the period from April, 1996 to January, 2001 of the duty paid on quantities of NGL for the reason that it had not been consumed by EPL to produce electricity which was utilized, as required by the rules, in the manufacture of final product by ESL. It categorized these quantities of NGL into three. The first alleged that a quantity of NGL, involving duty of about Rs. 17.02 crores, had not been utilized at all in the manufacture by EPL of electricity that it supplied to EPL. The second ground, involving credit of Rs. 2.46 crores, was that some part of the NGL was utilized to generate electricity that was required to keep in operation of the power plant of EPL, and hence not utilized in generation of electricity utilized by the appellant. The third ground was that part of the electricity generated by EPL was fed into the grid of the Gujarat Electricity Board. The notice invoked the extended period of limitation contained in Rule 571 on the ground of suppression of the fact of non-utilisation of electricity on these counts, and proposed penalty. In the order impugned in this appeal, the Commissioner has confirmed the demand stated in the notice and imposed a penalty of Rs. 24.5 crores. Hence this appeal.
3. The figures which from the basis for the demand of the major amount of duty are set out in Annexure A to the notice, and the Commissioner has adopted the figures in the annexure with some minor modifications, incorporating them into his order in the annexure to it. We will therefore consider the figures in this order. (Although the headings in a column of this annexure refer to NGL and naphtha, it is clarified by the representative of for the appellant, and not disputed by the departmental representative, that it was only NGL that was in dispute.) The annexure derives the quantity of NGL which was consumed in order to produce the quantity of electricity that was supplied to ESL in the following manner. it sets out the quantity of electricity received in every month by ESL, the quantity of NGL required for producing that electricity, the credit that could be taken on this quantity of NGL, credit actually taken, and thus arrives at figures of credit taken in excess. The total credit wrongly taken has been determined by adding up the figures of excess credit calculated for each month. The following example for April 1996 will make the position clear.4. Credit admissible on (3) @ Rs.587.87 per ton Rs. 248809.516. Excess credit taken Rs.1104152 The annexure to the Commissioner's order is enclosed as annexure to this order.
4. The contention that the representative of the appellant raises in disputing the basis for such a calculation has to be accepted. The notice and the order of the Commissioner take a month as the basis for their calculations, and thus proceed on the assumption that the NGL that was received in any particular month by EPL from ESL must necessarily have been used by it within that month fro production of electricity. Such an assumption is arbitrary and does not stand to reason, and further, is not supported by any provision of law. The consumption of NGL by EPL would not always take place in the same month in which it was received. EPL had purchased NGL on its own in order to generate electricity which it sold to the Gujarat Electricity Board.
This quantity of NGL would have been stored in common with what it received from ESL. Hence, it is perfectly possible, and indeed probable, that the quantities of NGL that it received from ESL may have been utilized in later months than the month of receipt. Even if there were no purchase of NGL by EPL, quantities of NGL that it received toward the end of a month would have been put to use in the next month.
5. The error in the method of calculation is in fact manifest from the figures themselves. During four months of the period under consideration, ESL did not receive any electricity from EPL generated out of the NGL that it sent. The electricity that it received was generated by EPL using natural gas on which duty was not payable. In these months, however, the appellant sent NGL to EPL. Since no electricity was received by the appellant during these months, the credit to which it was eligible has been shown to be nil. If, during those months credit is given for the quantities of NGL actually received and sent by the appellant to EPL, as shown in the first column of the annexure, it will amount to about Rs. 2.63 crores, as shown below.
6. Similarly, in those months in which the admissible credit availed is greater than the credit that was taken, excess credit has been shown to be zero. This is clearly wrong. The admissible credit, calculated on the basis on NGL sent by the appellant, would have to be set off against the alleged excess credit. This amount comes to around Rs. 5.92 crores as shown below.
Month Figure as per Column (9) of Annexure 'A' to the Order Correct figure, being difference of Column (8) and (7) of Annexure 'A' .
(39,61,124.45) Sept. '96 (9,75,666.38) Oct. '96 (69,27,487.31) Nov. '96 (11,81,595.99) Dec. '96 (30,30,177.02) Feb '97 (1,58,77,280.40) March '97 (2,02,75,576.65) Dec.'97 (69,21,104.41) Feb. '98 7. There are also clear errors of calculation in the annexure, while deriving the excess credit taken by subtracting the figures of credit availed from the admissible credit. If there are corrected, the credit admissible for these months comes to about Rs. 8.49 crores, as shown below.
Total as per Column (9) of the Annexure to the Order Correct total being difference of column (8) and (7) of Aruiexure 'A' July '98 (56,30,829.37) Sept'98 (45,76,851.75) Dec '98 (29,56,524.39) Jan '99 (25,76,524.41) Feb '99 (82,615,99.93) March '99 (70,69,332.07) July '99 (82,75,527.26) Sept'99 (1,25,14,673.40) Oct"99 (35,17,676.00) Dec '99 (2,17,70,275.21) Jan' 00 (15,43,965.89) May '00 (13,40,450.09) July '00 (28,92,838.32) Aug '00 (19,93,971.35) Annexure V to this order shows the position after these corrections have been carried out.
8. The second ground for demand related to the quantities of NGL utilized by EPL for generating quantity of electricity required to run its power plant - to initially start up the turbines that may have been stopped and to otherwise keep the power plant running. This has been referred to as auxiliary power. Credit has been denied on the ground on the quantities of NGL notionally attributable to this use on the ground that it was not used in or in relation to the manufacture of the final product. The contention of the appellant is that the rules as they stood at the relevant time (Rule 57A or 57B) defined inputs to include inputs "used for generation of electricity used for manufacture of final product or for any other purpose within the factory of production." The NGL that was used to generate electricity by EPL which was received and consumed by the appellant in the manufacture of its final products has been recognized as an input and duty paid on it allowed as credit. This electricity could not have been produced by EPL without the use by it of electricity required to keep its power plant running. Therefore NGL used to generate this auxiliary power would qualify as an input. The departmental representative supports the Commissioner's order.
9. It is not disputed by the Commissioner or by the departmental representative that in order for EPL to generate electricity it needed to consume some electricity that it produced. If this power were essential for EPL to produce the electricity supplied by it to ESL it would have to be held that the inputs used to this extent qualify for being considered as input within the meaning of Rule 57A or 57B depending upon a period of time. Without consumption of this quantity, the further quantities of electricity supplied to ESL and, indeed to anyone, could not have been generated. Hence,it is clear that the disputed quantity of NGL was used for generation of electricity supplied to ESL and used by it for manufacture of the final product or for any other purpose within the factory of production of the final product. At the relevant time, the electricity generated by EPL was disposed of in one of three manners - by its own internal consumption (auxiliary power), supplied to ESL for manufacture of final product and supplied to the Gujarat Electricity Board either for payment or otherwise. The inputs used to generate the auxiliary power therefore cannot be considered to have been exclusively used to generate electricity supplied to, and utilized by the appellant notionally be attributable either to the quantity of the electricity used by the appellant or to the electricity fed into the grid of the Gujarat Electricity Board. It is only that quantity of NGL notionally used to produce the auxiliary power required to generate the power supplied to ESL that would qualify for the benefit. The portion of auxiliary power notionally utilized for generating electricity supplied for payment to Gujarat Electricity Board would not be entitled to this benefit. The notice itself recognizes this, and demands credit only with regard to ESL's share of the auxiliary power.
10. The facts indicate that EPL fed part of the electricity that it received into the grid of the Gujarat Electricity Board. This was for one of two purposes. The electricity was sold to the Gujarat Electricity Board in pursuance to a subsisting contract with that body.
The other mode of supply took place in unforeseen circumstances. On occasion, the quantity of electricity that was transmitted to ESL could not be utilized by the latter, as it was in excess of its immediate requirement at this point of time. It was therefore allowed to flow into the grid of the Gujarat Electricity Board. It is stated that this was a kind of "dumping," getting rid of excess power and no payment was received for this quantity either by EPL or the appellant. The third count of the Commissioner's order relates to the NGL used to generate this quantity of electricity that was "dumped" in the Gujarat Electricity Board on the ground that it was not used as provided in the rules in the appellant's factory.
11. It is first contended in this regard by the appellant that the input has been utilized in the manufacture of the intermediate product - electricity - required for manufacture of final product. The requirement contained in the rules of the intended utilization of the input towards the manufacture of the final product has been satisfied.
Hence credit should not be denied. The judgment of the Supreme Court in Steel Authority of India Ltd. v. CCE 1997 (68) ECR 43, and the decision of the Tribunal in, Inalsa Ltd. v. C.C.E. 1997 (97) ELT 417 and other decisions following it, Asmaco Plastic Industries v. CCE 1998 (100) ELT 129 and CCE v. Colour Chemicals 1999 (113) ELT 132 are cited in support. It is also contended that after its amendment in November, 1993, Rule 57D provided for not disallowing credit in such a contingency.In Steel Authority of India Ltd. v. CCE 1997 (68) ECR 43, the Supreme Court held that raw naphtha used to make reformed gas which was vented into the air because it could not be used due to circumstances beyond the manufacturer's control was intended for use in the manufacture of fertilizer, and hence entitled to the exemption contained in notification 187/61. A similar view has bene taken by the Tribunal with regard to modvat credit in the cited decisions, that credit could not be denied on inputs converted into intermediate product which could not be used in the manufacture of the final product for reasons beyond the manufacturer's control. The electricity under consideration by us, it is stated, could not be consumed in any of the three are furnaces that were installed in the appellant's factory, because the quantity required at any given moment of time could not be forecast accurately sufficiently early, so as to regulate its generation. Hence it had either to be run into the ground - earthed - or passed on to the grid of the Gujarat Electricity Board. The latter was done, and no payment, or compensatory supply of electricity, was received in return.
13. The judgments cited by the appellant appear to us to apply to the facts before us. The Commissioner does not answer the same point that was made before him, citing authority; nor is the Departmental Representative able to defend his order. In addition, the amendment made to Rule 57D in November 1993 added a clause, "or that the inputs have become have become waste in or in relation to the manufacture of the final product." Cases such as the one under consideration by us would be covered by this clause. The NGL has become waste in relation to the manufacture of the final product, and credit could not be denied on it.
14. The appeal is accordingly allowed, and the impugned order set aside. Consequential relief in accordance with law.
ANNEXURE A Quality of NGL / Naphta sent by EHTL to EPoL (MT) Electricity received & used (excluding surplus electricity dumped on GEB grade by EHTL) by EHTL from EPoL (Units) Per Unit consumption of NGL / Naphtha (Kgs) Total NGL / Naphtha consumed (MT) Modvat credit admissible per MT on NGL / Naphtha (Rs) Total credit admissible (Rs) Modvat credit availed ` (Rs) Excess modvat credit recoverable (Rs) (D 12385795 60219576 34952033 58519616 55392677 Quality of NGL / Naphta sent by EHTL to SPoL (MT) Electricity received & used (excluding surplus electricity dumped on GEB grade by EHTL) by EHTL from EPoL (Units) Per Unit consumption of NGL / Naphtha (Kgs) Total NGL / Naphtha consumed (MT) Modvat credit admissible per MT on NGL / Naphtha (Rs) Total credit admissible (Rs) Modvat credit availed (Rs) Excess modvat credit recoverable (Rs) (1) 20163.169 3652.109 -39843113.20 43063953.24 1274994.08 -841264.76 38400231.24 42054800.60