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TMI Blog2019 (7) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... e also availing Cenvat credit facility on inputs, capital goods and input services under Rule 2 and 3 of the Cenvat Credit Rules, 2004. During the scrutiny of records of the appellant, Department observed that during the period 1.1.2008 to 28.2.2011, the appellant has cleared the cement from the factory as well as depot as the Non Trade Sale (industrial/institutional buyers) by wrongly paying Central Excise duty in terms of Sr. No. 1A of Notification No. 4/2007-CE dated 1.3.2007 whereas they were required to pay Central Excise duty as per Sr. No. 1C of the Notification. It was also observed that the appellant earlier used to clear the cement of trade sale by availing the benefit of Sr. No. 1A of the notification while for the Non Trade Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for industrial/institutional buyers for concessional rate of duty. In furtherance thereof the Show Cause Notice dated 25.4.2008 was served the same was decided vide Order No. 13/2010 concluding that the supply of cement to above kind of contractors clearly fall within the meaning of industrial/institutional buyers. It is since then that the appellant started clearing the cement (Non Trade Sale) under Sr. No. 1A of the Notification No. 4/2007 dated 1.3.2007. Hence, the allegations of wrongly changing the pattern during the period of dispute from Sr. No. 1C to Sr. No. 1A of the impugned notification are not at all correct and sustainable. It is submitted that Revenue has not made a case of retail sale at higher price than the MRP pre-print ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Measures Rules have also been taken into consideration and it has been rightly held that in this case exemption from display on (RSP) Retail Sale Price is not granted when the buyer is either an institutional or industrial consumer. Para-24 of the impugned order has been impressed upon along with para-26 thereof while justifying the impugned order. The appeal is, accordingly, prayed to be dismissed. 6. After hearing both the parties and perusing the entire record, we are of the opinion as follows : 7. The basic ground taken by the Department while raising the demand is that the duty applicable in respect of Non-Trade Sales is self assessed by the appellant on MRP basis that the direct sales (Non Trade Sales) were earlier assessed by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise duty under Notification No. 4/2007 with Sl. No. 1 C was Rs. 400/- per MT at the relevant time. Thus, we find that the appellant have cleared consignment of cement to the Institutional buyer under Sl. No. 1 C of Notification No. 4/2007 and therefore, it appears that there is no short levy of Central Excise duty on the clearances affected to the Non Trade Sales buyers namely Institutional buyers. Similarly the invoice No. 0025044 dated 30 December, 2010 issued to M/s. C & C Constructions Ltd. where the excise duty charged on the clearance was Rs. 290 per MT or 10% of transaction value whichever is higher. We feel that the appellant have assessed and paid Central Excise duty correctly on clearance of Non Trade buyers as applicable at the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the above, we find that the adjudicating authority need to examine the claim made by the learned advocate for the appellant whereunder they have submitted nearly two dozen invoices covering the period of demand i.e. 1.1.2008 to 28.2.2011 from which it has been shown that the clearances were actually made to the Institutional buyers who fall under the category of Non Trade buyers and they have rightly paid Central Excise duty as applicable under Sl. No. 1C of Notification No. 4/2007 dated 01.03.2007. Since the basic ground of show cause notice is that the appellants have made clearance to the Institutional buyers under Sl. No. 1 A rather than 1 C of the Notification No. 04/2007, same can be verified from the claim made by the appellant t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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