Judgment:
1. In these three appeals, filed by M/s. Diamond Cements, the issue relates to the availability of Cenvat Credit.
2. Shri B.L. Narasimhan, learned Advocate, submitted that the appellants have two units, which are adjacent to each other, both engaged in the manufacture of cement; that they have installed a D.G.Set in their factory in Diamond-I; that they have taken Cenvat Credit of the duty paid on LDO, which is used as fuel and on the lubricating oil which is used for maintenance of the D.G. sets and also on the cleanflo which is an item used for demineralisation of the water; that a portion of the electricity, so generated in the D.G. set in Diamond-I, is supplied to Diamond-II; that the Revenue has denied Cenvat Credit on the items used as fuel for generating electricity on the ground that a portion of the electricity is supplied outside the factory; that it has been held by the Tribunal in the case of Dhampur Sugar Mills Ltd., 2001 (129) E.L.T. 73 (T) that number of different plants manufacturing different excisable goods in same premises would constitute one factory and their separate registration would not mean that they are different factories; that no doubt, the Supreme Court has admitted the Revenue's appeal against this decision, but the Supreme Court has not granted any stay; that the decision in the case of Associated Cement Co. Ltd. v. C.C.E., 2002 (150) E.L.T. 296 (T), is not applicable to the facts of the present matter as in the said decision the capital goods were installed in other unit; that moreover, though the decision in the case of Dhampur Sugar Mills Ltd. (supra) was relied upon in A.C.C. Ltd., the learned Single Member has not discussed the same. Reliance has also been placed on the decision in the case of Rollatainers Ltd. v. C.C.E., 2002 (150) E.L.T. 383 (T), wherein paperboard division and paper division being situated in same premises is regarded as one factory.
3. Learned Advocate also submitted that Cenvat credit has also been disallowed to them on the ground that the invoices, under which the inputs were not valid duty-paying documents inasmuch as M/s. Indian Oil Corporation Ltd., Jhansi were not registered dealers; that Indian Oil Corporation Ltd., Jhansi are duly registered with the Department. In support of his contention, the learned Advocate submitted that the registration Certificate No, 06/Registered Dealer/R-III/99 was issued by the Superintendent (Central Excise) Range-III/ Jhansi.
4. Countering the arguments, Shri S.C. Pushkarna, learned D.R., submitted that the appellants are having separate registration for their two units, viz., Diamond-I and Diamond-II, which goes to show that these are two separate premises; that as the electricity is supplied to the other unit, the Cenvat credit has been rightly denied to them. Regarding registration of the dealer of IOC at Jhansi, the learned D.R., submitted that the certificate now furnished by the appellants, has to be examined by the adjudicating authority.
5. We have considered the submissions of both the sides. We find force in the submissions of the learned Advocate for the appellants that mere taking of two registration certificates separately for Diamond-I and Diamond-II, these cannot be regarded as two different factories. As per Section 2(e) of the Central Excise Act "factory", means any premises, including the precincts thereof, wherein or in any part of which any manufacturing process connected with the production of these goods is being carried on or is ordinarily carried on. It has been the contention of the appellants that both the units are situated in close proximity and adjacent to each other in the same premises. This has not been controverted by the Revenue that both the units are not located in the same premises. The similar issue came for consideration of the Tribunal in the case of Dhampur Sugar Mills Ltd. (supra) wherein this Tribunal observed that "number of registrations, in our view, would not decide the number of factories unless and until they are situated in different premises. It is very clear from the definition of the term "factory", that all the three units will be regarded as one factory as all the excisable goods are manufactured in the same premises." Similar views were expressed by the appellate Tribunal in the case of J.K.Synthetics Ltd. [1991 (52) E.L.T. 116 (Tri.)] wherein it was held that as two units fall within the same premises within one boundary wall, the entire area of the land allotted to the appellants in the industrial area, the appellants are entitled to obtain one consolidated licence for the manufacture of their goods within their factory complexes as the object behind the grant of consolidated licence is that any person manufacturing different excisable goods within one factory area is entitled to obtain one licence instead of different licences for different commodities. Similar issue came also for consideration in the case of Rollatainers Ltd. (supra) where the appellant company were having number of units engaged in the manufacture of excisable goods in the same premises. The Tribunal has held that as paperboard division and paper division are situated in the same premises, this cannot be treated as different factories. The decision, relied upon by the Commissioner (Appeals), i.e. Associated Cement Co. Ltd. has been passed by the learned Single Member of the Tribunal, which is not binding on us. Further, as pointed out by the learned Advocate, the decision in the case of Dhampur Sugar Mills Ltd., was not considered though referred to by the learned Single Member in A.C.C. case (supra). We, therefore, hold that the benefit of Cenvat credit in respect of the impugned inputs cannot be denied to the appellants on the ground that the part of the electricity is supplied to Diamond-II. Coming to the question whether the Cenvat credit is available to the appellants on the strength of the invoices issued by the dealer of IOC at Jhansi, we observe that no proof was provided by the appellants to both the lower authorities in support of their contention that the dealer was duly registered with the Central Excise Department. Learned Advocate has now produced a registration certificate which certainly needs verification by the adjudicating authority. Accordingly, on this aspect, we remand the matter to the jurisdictional Adjudicating Authority to ascertain whether the dealer at Jhansi was registered with the Department or not at the relevant time. All the appeals are disposed of in above manner.