TMI Blog2016 (10) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... 977 is not tenable. The institutional consumer means those consumers who buy cement directly from the manufacturers for service industry like transportation including airway, railway, hotel or any other similar service industry. We find that educational institutions and hospitals are directly buying cement from the assessee-appellant and rightly eligible for concessional rate of duty as service institution - admittedly, the sale being direct without any intermediary involved, the criteria for retail sale has not been fulfilled. As such we find wherever such direct sale is effected the application of Packaged Commodities Rules, 1977 will not be governed by Rule 3 for enforcement - the denial of the concession in terms of the abovesaid notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are not be covered under the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the cement is cleared without declaration of RSP. The assessee-appellant cleared cement to various industrial and institutional customers and claimed the concessional rate of duty as above. A dispute arose regarding applicability of such concessional rate of duty on the ground that the buyers do not qualify as industrial/ institution consumers. Accordingly, proceedings were initiated to demand an amount of ₹ 5,93,25,898/-. Upon adjudication, the ld. Commissioner confirmed a demand of ₹ 57,47,606/-. The assessee appellant is against such confirmation. The Revenue also filed an appeal against the said order on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. Admittedly, for cement sold by the assessee-appellant directly to the consumers on contracted price no RSP was marked on the packages and they bore endorsement of not for sale . We find the claim raised by the assessee- appellant on this has not been dealt with and no finding was recorded by the original authority. The whole focus of adjudication was on Rule 2A of the Packaged Commodities Rules only. We find Rule 2A was a later insertion which provided for exclusion for applicability of said Rules for certain types of packaged commodities meant for industrial consumers or institutional consumers. It also provided for exclusion of cement and fertilizer sold in bags upto 50 kg. The case of Revenue is that cement bags are of 50 kgs. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind the reasoning given by the original authority that schools, educational institutions and hospitals are not service industry in terms of Rule 2A of the Packaged Commodities Rules, 1977 is not tenable. The institutional consumer means those consumers who buy cement directly from the manufacturers for service industry like transportation including airway, railway, hotel or any other similar service industry. We find that educational institutions and hospitals are directly buying cement from the assessee-appellant and rightly eligible for concessional rate of duty as service institution. Even if it is considered that these institutions do not come under the category of other similar service industry , as per Rules, the fact remains that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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