TMI Blog2019 (2) TMI 1095X X X X Extracts X X X X X X X X Extracts X X X X ..... CE as amended from time to time is available to the assessee in respect of all the clearances to institutional buyers whether or not the cement is sold in individual bags - The demand on this ground along with interest, if any, is set aside. Whether the same exemption notification is also available to sales, if any, are made to individual consumers by the assessee? - Held that:- As far as sales to individuals are concerned, sale to individual customers does not appear to be covered by the exemption notification - It has been held by the Hon’ble Apex Court in its five member constitutional bench in the case of Dilip Kumar & Co. and others [2018 (7) TMI 1826 - SUPREME COURT OF INDIA], any exemption notification must be strictly interpreted against the person claiming the exemption - The sales to individuals for personal use are not covered by the exemption notification - demand and interest, if any, on account of sales to individuals by the appellant are upheld. Penalties also set aside. The appeals are disposed of by way of remand to the original authority for the limited purpose of determining the duty, if any, payable and interest thereon. - E/25403/2013, E/26266/2013, E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir factory. 4. Industries who buy Cement bags as inputs and cleared as such. 5. Industries who buy Cement bags for use in production, manufacturing etc. 3. He submits that the dispute is whether the cement manufactured and supplied to bulk industrial consumers but sent in 50 Kg bags specifically indicating that it is meant for industrial use and not for retail sale is eligible for exemption notification 04/2006-CE (Sl.No.1C) or not. He submits that this issue was disputed in various fora and it has been settled by the Tribunal-Bangalore in the case of Mysore Cements Ltd [2010 (249) ELT 398]. It has been held that benefit of concessional rate of duty under Sl.No.1C of the notification is available to supplies made to institutional consumers whether or not the cement is packed in bulk. He draws the attention of the bench to Paragraphs 5- 5.4 of this judgment which reads as follows: 5. We have considered the submissions made at length by both sides. The only issue that arises for the decision before us is whether the appellant is eligible for availing the benefit of concessional rate of duty of ₹ 400/- per MT in terms of Notification No. 4/2006-CE dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 1B 2523.29 All goods, manufactured in a mini cement plant, other than those cleared in packaged form; Rs.250 per tonne 1 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; Rs. per tonne 400 - 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 product 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 and the price so printed is the sole co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a service industry and the benefits claimed by the appellants of Sl.No.1C will be applicable to the clearances made by them. We find strong force in the contentions raised by the learned counsel that the decision of the coordinate Bench in the case of M/s Grasim Industries Ltd will clearly cover the issue in their favour. We may reproduce the said ratio. 3. The appellant s contention is that goods sold for servicing an industry remain exempt from the requirement of packaged commodities Rules under Rule 34 of those Rules and that white cement consignments sold to builders were thus exempt. It is also emphasized that cement packets meant for builders were not for sale in retail. They have also relied on the fact that the packets in question were marked as goods Not for retail sale . The appellants have also relied on the clarification issued by the Central Board of Excise and Customs under Circular No.625/16/2002 dated 28-2-2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned counsel for the appellants has also relied on several decisions of the Tribunal Bharti Systel Ltd v. CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IO which reads as follows: 19.1 From the materials on record it is undisputed that assessees have sold the cement in 50 kgs bags without mentioning any RSP to the following customers. 1. Individual buyers who buy Cement bags for construction of their own house/ building etc., 2. Contractors/ Builders who buy Cement bags for use in the construction of Buildings etc. and sell the buildings/ constructions after completion of construction. 3. Industries who buy cement bags for construction of their factory or for constructing any civil structures in their factory. 4. Industries who buy Cement bags as inputs and cleared as such. 6. It is the submission that insofar as the individual buyers are concerned, as can be seen from a plain reading of notification that the claimed exemption notification does not apply and the duty therefore needs to be calculated accordingly. 7. Learned counsel for the appellant submits that in the case of Diamond cements [2017 (352) ELT 177] Tribunal-Delhi has held that the sale to individual buyers without any intermediary person is entitled for concessional rate of duty and is covered by notification 04/2006-CE dt.01.03.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
