TMI Blog2014 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, BANG ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cement for construction purpose or as raw material. Such buyers are covered by the definition of industrial consumer' or institutional consumer' under explanation to Rule 2A of PC Rules, 1977 and Rule 3(ii) of PC Rules, 2011. As per these provisions, commodity meant for industrial consumer or institutional consumers are not required to be affixed with MRP. Accordingly, the appellants have not declared the MRP on the cement bags and specifically have declared on the packages as Not for Retail Sale- meant for industrial consumer/institutional consumer/RMC consumption . They have discharged excise duty liability on such cement bags availing the benefit of Sr. No. 1C of Notification NO. 4/2006-CE dated 1.3.2006 as amended from time to time during the period May, 2007 to 16.3.2012 and under Sr. No. 52 of Notification NO. 12/2012-CE dated 17.9.2012 for the period from 17.3.2012 onwards. As per these entries in the notifications, cement bags of 50 kg cleared to industrial or institutional consumers, which is not subject to fixation of MRP, is eligible for concessional rate of duty as provided therein. However, the department was of the view that the appellants are not eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the jurisdictional Commissioners have decided the matter in favour of the appellant and dropped the duty demands by extending the benefit of Notification No. 4/2006. These orders have also been accepted in review by the Committee of Chief Commissioners. In these circumstances, it is prayed that the appeals be allowed. 4. The learned Commissioner (AR) and Addl. Commissioner (AR) appearing for the Revenue, on the other hand, submits that the decision of the Tribunal in the case of Grasim Industries Ltd. has been taken up in appeal before the Hon'ble Supreme Court and the appeals have been admitted. Since the appeals have been admitted, the decision is in jeopardy and, therefore, no reliance can be placed on the said decision. It is his further argument that the Tribunal had not decided the applicability of Rule 2A of the PC Rules, 1977 to the Cement sold in 50kg bags to industrial / institutional consumers especially in the context of clause (b) of Rule 2A has to be read together and not in isolation. If they are read together, then it can be seen that the cement sold in 50kg bags to industrial/ institutional consumers are not exempted from declaration of RSP. Accordingly, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In other words, in respect of both the above categories, the provisions of PC Rules would not apply. 5.3 Further, institutional consumer' is defined to mean consumers like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodity directly from the manufacturer and industrial consumer' means those who purchase the packaged commodity for use by that industry. 5.4 There is no dispute that the 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 ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, not covered in S. No. 1B, other than those cleared in packaged form; Explanation - For the purpose of S. Nos. 1, 1A, 1B and 1C, - 1. mini cement plant means (i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 3,00,000 tonnes; 2. retail sale price means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price so printed is the sole consideration for the sale: Provided that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3800; (ii) of retail sale price exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price exceeding ₹ 3800. [Rs. 230 per tone] [8% or retail sale price] 1B. 2523 29 All goods, manufactured in a mini cement plant, other than those cleared in packaged form; ₹ 170 per tonne 1C. 2523 29 All goods, whether or not manufactured in a mini cement plant, not covered in S. No. 1B, other than those cleared in packaged form; Explanation - For the purposes of S. Nos. 1, 1A, 1B and 1C, - 1. mini cement plant means (i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % or ₹ 230 per tone, which ever is higher] 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. 5.6 In the Grasim Industries case (supra), this issue was specifically examined by this Tribunal and it was held as follows:- As rightly pointed out by the learned Counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Board's clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee's case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to indust ..... X X X X Extracts X X X X X X X X Extracts X X X X
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