TMI Blog2017 (8) TMI 1168X X X X Extracts X X X X X X X X Extracts X X X X ..... d for retail sale in Chapter II of the said rules, will not apply to the clearances of cement by the appellant to its Industrial or Institutional consumers. In respect of the clearances of 25489.250 MT (26434.30 MT Less 945.050 MT) referred to in the Annexure to the Show cause notice, these clearances will necessarily have to be held as packages not intended for retail sale and to which the provisions of Chapter II of the Rules shall not apply. In view of Rule 2A thereof, duty demands in respect of these clearances will therefore not sustain and will have to be set aside which we hereby do - In respect of remaining 945.05 MTs for self-consumption inside the factory and 632.30 MTs unsold quantity at warehouses (Sl.No.11 to 12) of para 2(i) above by no stretch of imagination would these clearances can be considered as retail sales. These clearances cannot be considered as retail sales and hence benefit of the said notification cannot be denied to them - appeal allowed - decided in favor of appellant. - E/126/2009 - 41783/2017 - Dated:- 21-8-2017 - Ms. Sulekha Beevi C.S. Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri Raghavan Ramabadran, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contractors Construction of Infrastructure/ Buildings/ Govt. Projects 2307.75 3. Govt. company Infrastructure 1,626.00 4. Manufacturers Sale to Visaka Industries Ltd. M/s. The Indian Hume Pipe Co. Ltd. Asbestos Cement Pipe manufacturers 2,981.00 5. Manufacturers Ready mix concrete manufacture 3,126.00 6. Manufacturers Buildings/ I.T. projects 1,215.00 7. Charitable institutions Buildings 144.00 8. Educational institutions Buildings/infrastructure 4,248.25 9. Hospitals Buildings/infrastructure 1,744.50 10. Societies Buildings 998.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Vs. CCE, 2010 (349) E.L.T. 398 (Tri. Bang.) viii. Grasim Industries Ltd. (Unit-I) Vs. CCE, 2009 (238) E.L.T. 655 (Tri. - Chennai) ix. Shree Cement Ltd. Vs. CCE, 2016-VIL-1020-CESTAT-DEL-CE x. Chettinad Cement Corp. Ltd. Vs. CCE, 2015 (329) E.L.T. 845 (Tri. - Chennai) xi. Grasim Industries Ltd. Vs. CCE, 2004 (175) E.L.T. 779 (Tri. Del.) (vii) In the instant case, the non-trade sector sale bags and relevant invoices are unambiguously marked as SPECIALLY PACKED NOT FOR RETAIL SALE NOT FOR RESALE , and thus the requirement under Rule 34 of Packaged Commodities Rules has been complied with. It is thus submitted that the reliance on the case Grasim Industries Ltd. Vs. CCE, 2004 (175) E.L.T. 779 (Tri. Del.) is correct. (viii) Concessional rate of duty prescribed under Entry 1C of Notification No.04/2006 is also applicable in cases where packed goods are consumed captively or held as unsold stock inasmuch as Packaged Commodity Rules are attracted only in case of a retail sale and in the present case, there is no sale at all. Hence, the quantity of 945.05 MT cement used inside the factory for repairs and construction and 632.30 kept unsold in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... require that retail sale prices should be mentioned on packages intended for retail sale. However, Rule 2A of the Rules clarify that these requirements shall not apply to (a) packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and (b) packaged commodities meant for industrial consumers or institutional consumers. Explanation: For the purpose of this rule, - (a) Institutional consumer-Means those consumers who buy packaged commodities directly from the manufacturers/packers for service industry like transportation [including airways, railways], hotel or any other similar service industry. (b) Industrial Consumer-Means those consumers who buy packaged commodities directly from the manufacturers/packers for using the product in their industry for production, etc. 4.5 It is seen that the appellant had sold cement in packs of 50 kgs each. Except for 945.05 MTs (self-consumption) and 632.30 MTs (stock-in-transit closing stock at warehouse), the remaining portion of the disputed clearances totalling to 29415.25 MTs were sold either to manufacturers, users, asbestos an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Show cause notice, these clearances will necessarily have to be held as packages not intended for retail sale and to which the provisions of Chapter II of the Rules shall not apply. In view of Rule 2A thereof, duty demands in respect of these clearances will therefore not sustain and will have to be set aside which we hereby do. So ordered. 4.8 In respect of remaining 945.05 MTs for self-consumption inside the factory and 632.30 MTs unsold quantity at warehouses (Sl.No.11 to 12) of para 2(i) above by no stretch of imagination would these clearances can be considered as retail sales . They would also not fall within the ambit of definition of retail sale and Rule 3(q) of the 'SoW M Rules', which defines Retail Sale Price as follows : retail sale , in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sales agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer 4.9 Viewed in this light, we are unable to accept the argument of the adjudicating authority that these two types of clearances amounting to 26434.30 MTs fall foul of the Notification No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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