TMI Blog2018 (2) TMI 1396X X X X Extracts X X X X X X X X Extracts X X X X ..... ce industry and the assessee had satisfied the other requirement of the Notification, they are entitled to the benefit under the Notification. Demand set aside - appeal allowed - decided in favor of appellant. - E/Early Hearing/21125/2015 in E/ 20225/2014-DB, E/Early Hearing/21124/2015 in E/25553/2013-DB - A/30072-30073/2018 - Dated:- 30-1-2018 - Mr. M.V. Ravindran, Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Mr. G. Prahlad, Adv - for the Appellant. Ms. Priyanka Reddy, A.R. - for the Respondent. ORDER [Order per: M.V. Ravindran] These two applications are filed for out-of-turn hearing of appeals on the ground that the issue is squarely covered by various decisions of the Bench. We fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2006/4/07 (as amended) was extended. It is the submission that Revenue aggrieved by the said order of the Tribunal filed appeal before the Hon'ble High Court of Karnataka in Central Excise Appeal No.144/2009 which was dismissed by their Lordships by speaking order as reported at 2010 (259) ELT 30 (Kar). 7. We find it so. Hon'ble High Court of Karnataka in an identical set of facts as stated by us hereinabove, has held as under: This appeal is by the revenue challenging the order passed by the Tribunal holding that the construction industry is a service industry and the cement supplied to such an industry is entitled to concessional rate of duty of ₹ 400/- per MT in terms of Notification No.4/2006 C.E. dated 1-3-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, according to Notification No.4/2006 dated 1-3-2006 as amended by Notification No.4/2007 C.E. dated 1-3-2007, where the retail sale price of the goods are not required to be declared tinder the Standards and Weights and Measures (Packaged Commodities) Rules, 1977 and thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form. They have supplied to goods to institutional consumers, and as per Rule 2A(ib)(id) of the said Rules, the provisions of Chapter II would not apply to the packaged commodities meant for institutional consumers and industrial consumers. Therefore, they contended that they were entitled to avail the concessional rate of ₹ 400/- per metric tonne on the quantity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industries in any Country, the construction industry is a service industry and therefore, the assessee is entitled to the concessional rate of excise duty and therefore, it set aside the order passed by the adjudicating authority and held that, the assessee is entitled to the benefit of the Notification. Aggrieved by the said order, the revenue is in appeal. 3. The learned counsel for the appellant assailing the impugned order contends that, the construction industry is not a service industry. Only when cement is sold in not packed condition, the assessee would be entitled to the benefit of concessional rate of ₹ 400/- per metric tonne. When admittedly, the cement is sold in packaged condition of 50 Kgs bags, the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cks merits. Accordingly, it is dismissed. This view of their Lordships in the case of Mysore Cements Ltd has been followed by the Tribunal in the case of Heidelberg Cement (India) Ltd and Ultra Tech Cement Ltd - (2014-TIOL-1433-CESTAT-MUM) and by this Bench in the case of Panyam Cements and Minerals Ltd by Final Order NoA-30500/2016) dated 27.05.2016. 8. In view of the foregoing we find that the issue is now squarely settled in favour of the appellant, we hold that the impugned orders are unsustainable and liable to be set aside and we do so. The impugned orders are set aside and the appeals are allowed with consequential relief if any. (Order pronounced and dictated in open court) - - TaxTMI - TMITax - Central ..... X X X X Extracts X X X X X X X X Extracts X X X X
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