TMI Blog2019 (7) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... ion No. 04/2007, same can be verified from the claim made by the appellant that the clearances have been actually made under Sl. No. 1 C of Notification No. 4/2007 and not under Sl. No. 1 A. As it is already explained with regard to Universal Cables that if Universal Cable fall under the category of Non Trade Sales (Institutional buyer), they need to pay Central Excise duty under Sl. No. 1C and if they are not actual Institutional user of the cement, the Central Excise duty can be paid by them under Sl. No. 1A of the Notification No. 4/2007. This aspect also need to be verified at the Commissionerate level. The matter needs a detailed verification and examination of claims made by the appellant at the field level, the appeal is remanded back to the original adjudicating authority for necessary verification. Time limitation of Show cause notice - HELD THAT:- There is a substance in the claim made by the advocate that the extended period of demand under section 11 A of the Central Excise Act, 1944 is not invokable in the facts and circumstances of this case. However, since the entire matter is being remanded back, it is expected that the learned adjudicating authority will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i, and learned Authorised Representative for the Department. 4. It is submitted on behalf of the appellant that industrial/institutional sales actually falls under Sr. No. 1C of the notification. To justify the said submission, it is mentioned that earlier also Preventive Team of Head Quarter, Bhopal conducted a search operation on 11.1.2008 observing that the cement cleared/sold to contractors undertaking construction of highways, buildings, bridges, canals and MES contractors etc. do not fall within the meaning given 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 Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 4/2007 CE dated 01.03.2007. The department has further alleged that the appellant had wrongly switched over to Sl. No. 1A of Notification No. 04/2007 and paid duty on the basis of MRP printed on the respective packs given in the case of Non Trade Sales. The learned advocate appearing for the appellant has taken us through various invoices which have been issued to Institutional consumers of cement which fall under the category of Non Trade Sales. The learned advocate has demonstrated that in case of Institutional Consumers, the appellants have paid Central Excise duty as applicable under Sl. No. 1 C of the Notification No. 4/2007 and not under Sl. No. 1A as claimed and held by the Department. The learned advocate has demonstrated that Central Excise duty as applicable has rightly been paid by them in case of Institutional sales (non-trade sales) under Sl. No. 1 C of Notification No. 4/2007. 8. On perusal, we find substance in the claim made by the learned advocate. A sample invoice No. 0018478 dated 29.1.2008 issued to M/s. Maihar Cement Pipe Industries by the appellant is reproduced hereinbelow for perusal: 9. It can be seen from the referred invoice that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled to pay the Central Excise duty as applicable at Sl. No. 1 A of Notification No. 04/2007. 11. In view 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 that the clearances have been actually made under Sl. No. 1 C of Notification No. 4/2007 and not under Sl. No. 1 A. As we have already explained with regard to Universal Cables that if Universal Cable fall under the category of Non Trade Sales (Institutional buyer), they need to pay Central Excise duty under Sl. No. 1C and if they are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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