Page 139 - GSTL_23rd April 2020_Vol 35_Part 4

2020 ] IN RE : JSW ENERGY LIMITED 465
Work model cannot be executed by a Principal and a Job Worker utilizing the
services of the railways. Similarly, the amount paid to the Grid is akin to a trans-
portation charge for goods sent from the Job Worker’s premises. It would be
equally absurd to conclude that when goods are transported back to the Princi-
pal’s place by a transport service provider, the conditions for Job Work are not
fulfilled since the same involved more than two persons. The fact that
MSEDCL/regulator is involved in the transaction, does not exclude the subject
transaction from the am bit of a Job Work activity.
20. Reference can also be cited to the decision of the Hon’ble High
Court of Bombay in the matter of CCE, Aurangabad v. Endurance Technologies Pvt.
Ltd. [2015-TI0L-1371-HC-MUM-ST = 2017 (52) S.T.R. 361 (Bom.)] where credit on
inputs and input services used by wind mills to generate energy which is made
available to the manufacturer through power board under the barter system, has
been allowed. The Tribunal at Chennai in the matter of DCW Ltd v. Commissioner
of C.Ex, Tirunelveli [2016 (332) E.L.T. 142 (Tri. - Chennai) = 2015-TIOL-982-
CESTAT-MAD)] and in the matter of The India Cements Ltd. and Others v. CCE,
Salem and Others also followed the above principle. Relevant extract of the India
Cement Ltd. case is reproduced as follows :
Our view above is fortified from the judgment of the Hon’ble High Court of
Bombay in Central excise appeal No. 14/2012 in the case of CCE, Auranga-
bad v. Endurance Technology Pvt. Ltd., disposed on 2-12-2014. The Hon’ble
Court examining the meaning of the ‘input’ under Cenvat Credit Rules,
2004 and admissibility of credit of tax on such input held that there should
not be inadmissibility of input credit on input or input services used by
wind mills to generate energy which is made available through power
board under barter system.
21. In the judgment of Endurance Technologies (supra), the High Court
has concluded that input tax credit of the inputs used in generation of power un-
der barter transaction, where the power is supplied back against the inputs,
would be available. Basis the above-mentioned judgments, which formed part of
the submissions to the Advance Ruling Authority, it can be construed that trans-
action of processing the inputs supplied by JSL and supplying back the power
generated to JSL would fulfil the condition of bringing back the inputs. The in-
volvement or absence of a third party regulator for transmitting the power to the
Principal would not have any significance while determining the fulfilment of
the aforesaid conditions.
22. In the present case, plants of JSL and JEL are situated at different
geographical locations and power is brought back using the power grid of Maha-
rashtra State Electricity Distribution Company Limited (MSEDCL). Since the
same is in an intangible form, there are no alternative and commercially viable
ways of bringing back the inputs to the Principal’s premises. A role of a regula-
tor, such as MSEDCL is required and mandated by the legislation. The Appellant
further submits that merely because the power has come through the power grid
of MSDECL, does not mean that JSL has failed to fulfil conditions of Section 143
of CGST Act. The power ultimately has been received by JSL only and the power
grid of MSEDCL is only a medium to transfer the power. Accordingly, the Ap-
pellant submits that the conclusion drawn by the Appellate Authority on this
basis is grossly erroneous and is liable to be set aside.

GST LAW TIMES  23rd April 2020  259