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2014 (8) TMI 251 - AT - Central ExciseExemption from affixing MRP on cement bags - rate of duty - Tariff rate or ad-valorum rate - concessional rate of duty - cement bags cleared after specifically declaring on the packages as “Not for Retail Sale- meant for industrial consumer/institutional consumer/RMC consumption” - benefit of Sr. No. 1C of Notification NO. 4/2006-CE dated 1.3.2006 - Held that:- packages of commodities containing a quantity of more than 25 kg or 25 litre excluding cement and fertilizers sold in bags upto 50 kg and packaged commodity meant the industrial or institutional consumer are excluded from the provisions of the said Rules. In other words, the Rules exclude two categories - the first category is packaged commodity containing a quantity of more than 25 kg or 25 litre and cement and fertilizer bags containing more than 50 kg. The second category is packaged commodity meant for industrial or institutional consumer. As regards the second category there is no restriction with respect to the quantity of the goods contained in the package. There is a ‘semi colon' between the two clauses. This would clearly indicate that the word ‘and' between the two clauses have to be read disjunctively and not conjunctively. Goods were sold by the appellant directly to the builders/developers/Ready Mix Concrete (RMC) manufacturers. RMC is an excisable product and therefore, the sale of cement for manufacture of RMC would definitely come within the category of sale to industrial consumers. As regards builders/developers etc., construction activity is a service activity as is well understood and there is also a Service Tax levy on construction activity. Therefore, sale to such builders/developers would certainly qualify as sale to institutional consumers. From a reading of the Notifications, especially the third proviso to entry at Sl. No. IC, it is clear that if the declaration of retail price is not required to be made in terms of PC Rules, then such goods are deemed as cleared in ‘other than packaged form' and the rate of duty prescribed under Sl. No. IC would apply. The position is the same in respect of Notification No. 12/2012 also. In the case of Mysore Cement Ltd. - [2009 (5) TMI 445 - CESTAT, BANGALORE], this Tribunal held that construction industry is a service industry and benefit claimed by the appellants under the aforesaid Notifications shall be admissible. The said decision was upheld by the Hon'ble High Court of Karnataka (2010 (8) TMI 246 - KARNATAKA HIGH COURT ). cement cleared to industrial/institutional consumers in 50 kg bags are eligible for the benefit of Notification No. 4/2006 under Sr. No. 1C. Thus it can be seen that this Tribunal as also the High Court have been consistently holding that institutional/industrial consumers are eligible for the benefit of Notification No. 4/2006 and Notification No. 12/2012 - Decided in favour of assessee.
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