TMI Blog2020 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ce also not declared the goods shall be treated as if they are cleared in other than packaged form and charged to duty accordingly. Such cases are covered by Sl No. 1C of the exemption notification. Such cases are covered by Sl No. 1C of the exemption notification. In the case of Rain Commodities Ltd Vs CCE Tirupathi [ 2011 (1) TMI 490 - CESTAT, BANGALORE ] where the cement was supplied to institutional buyers it has been held that Sl No 1A and 1B of the notification is not available to the appellant as in that case, clearance of the product was in bulk form which was not disputed. Time Limitation - HELD THAT:- The demand is also time barred and no evidence of fraud, or collision or wilful misstatement or suppression of facts with an intent to evade payment of duty has been brought on record. It was only a case of the appellant s claim Vs the Revenue s claim. In such a case, once the ER-1 returns are filed, it would be reasonable to expect the Revenue officers to assess them and in case of any dispute, raise a demand within the normal period of limitation - there is favour of the assessee on the ground of limitation. Interest and penalties - HELD THAT:- As the demand is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the relevant period, cement to M/s Andhra Pradesh Housing Corporation Ltd (APHCL) as well as for their own use in 50 kg bags declaring a retail sale price of less than ₹ 190/- per bag. They claimed the benefit of exemption Notification No. 4/2007-CE dated 01.03.2007 (Sl No. 1A) which was denied by the impugned order. Hence the demand. Before we proceed further, it would be profitable to examine the said notification. The relevant portion of this Notification is as follows: (1) (2) (3) (4) 1 2523.29 All goods, manufactured in a mini cement plant and cleared in packaged form- (i) of retail sale price not exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3800; ₹ 220 per tonne (ii) of retail sale price exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price exceeding ₹ 3800; ₹ 370 per ton ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration for determining the rate of duty: Provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form; 4. As can be seen, there is no dispute that the goods manufactured by the appellant fall under the Chapter Heading 252329. Sl No. 1 of the exemption notification is not applicable to the present case as the appellant is not a mini cement plant. The appellant claimed the benefit of Sl No.1A which is applicable for all goods whether or not manufactured in mini cement plant, not covered by Sl No. 1 and cleared in packaged form of retail sale price not exceeding ₹ 190/- per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3,800/-. The requirement for availing the benefit of this entry are: a) That the goods are not covered by Sl No. 1 which is not in dispute. b) The goods must be cleared in packaged form which is not in dispute. c) The goods must be of retail sale price not exceeding ₹ 190/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was a specific letter from the Controller of Legal Metrology that retail sale price was to be declared and hence the benefit has been extended. While in the present case no such letter has been put forth by the assessee. He, therefore, examined the provisions of Standards of Weights and Measures (packaged Commodities) Rules 1977 and came to the conclusion that there was no requirement of declaring the retail sale price on the cement bags in question and therefore the ratio of the Sagar Cements case does not apply. He relied on the ratio of the judgement in the case of Rain Commodities (supra) only based on the specific finding that the goods were cleared in bulk and denied the benefit of exemption notification Sl No 1A and allowed only the benefit of exemption at sl No 1C. 9. Learned counsel for the appellant submits that in their case, there is no dispute that the goods were cleared in 50Kg bags and this fact has been recorded. Therefore, the ratio of the judgement of Rain Commodities where the cement was cleared in bulk should not apply to them. On the other hand, Sagar Cements had also cleared the cement for supply to the some buyers namely APHCL in bags and therefore tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form . 13. A plain reading of the above proviso shows that the mischief of this proviso is attracted where the retail sale price is not required to be declared and also has not been declared. In this present case, even if the Revenue s argument that the retail sale price is not required to be declared is accepted there is no dispute that it has been declared. Therefore in our considered view, the assessee is not covered by this proviso. There is a more specific proviso which covers the assessee s case which is the first proviso to Sl No. 2 of the explanation to the Notification which reads as follows:- provided that if the goods are cleared in wholesale packages containing a number of standard packages, with retail sale price declared on them, then, such declared retail sale price shall be taken into consideration for determining the rate of activity under respective Sl No. 8 referred to above. Evidently the cement was cleared in large quantities but packed in 50kg bags to institutional buyers after declaring the retail sale price on each bag even though they were not required to so declare under the Standards of Weights and Measures (Packaged Commodities) Rules 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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