TMI Blog2022 (10) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of Rule 2A thereof, duty demands in respect of these clearances will therefore not sustain - the issue is no longer res integra. It has been held in the various cases that cement cleared in packaged form (50 kg. bags) to charitable organizations, builders/developers/ready mix concrete (RMC) manufacturers, contractors and construction firms, infrastructural development projects, educational institutions, societies and hospitals, government bodies, captive consumption, manufacturers of finished goods will qualify as sale to industrial/institutional customers - reliance can be placed in CHETTINAD CEMENT CORPN. LTD. VERSUS CCE [ 2008 (12) TMI 684 - CESTAT CHENNAI ]. The argument of the revenue that these types of clearances fall foul of the Notification No. 4/2006-C.E. cannot be accepted - These clearances cannot be considered as retail sales and hence benefit of the said notification cannot be denied to them. Confirmation of demand of Rs. 3,11,188/- - HELD THAT:- The said demand was confirmed in respect of the clearance of the Cement in 50 Kgs bags to individual consumers. The submission of the appellant is that since the said clearance is made directly by the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ganization and for self consumption has held that the said clearances being not a retail sale and clearly out of the purview of the Standards of Weight and Measure (Packaged Commodities) Rules, 1977 and hence eligible for exemption under Clause 1C of the Notification No. 04/2006. However out of total demand of Rs. 63,03,45,624/- , demand of Rs. 3,11,188/- pertaining to clearance made to individuals only confirmed alongwith interest and penalty. Ld. Commissioner has observed that sale to individual customers would not be eligible for benefits of concessional rate of excise duty under Notification No. 04/2006- CE dated 01.03.2006 as amended and /or Sr. No. 52 of Notification No. 12/2012-CE dated 17.03.2012. Hence these Appeals are filed by the both. 3. Shri R P Parekh, Learned Superintendent (Authorized Representative) appearing on behalf of revenue reiterated the grounds of the Appeals filed by the department and submits that Sl. No. 1C of Notification No. 04/2006- CE dated 01.03.2006 prescribes concessional rate of duty in respect of cement cleared other than in packaged form. The said Notification has been substituted by Notification No. 12/2012 also provides that where the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. 4. Shri. Anand Nainawati, Learned Counsel appearing on behalf of the assessee submits that impugned order passed by the Ld. Commissioner setting aside the demand of Rs. 63,00,34,436/- is correct in law and is thus liable to be upheld. During the period from April 2008 to 16.03.2012, serial No. 1A(i) of Notification No. 4/2006-CE dated 01.03.2006 as amended from time to time, specified the rate of duty applicable on cement falling under sub-heading No. 252329 manufactured in a cement plant other than mini plant and cleared in packaged from if the retail sale price (MRP) of the cement is not exceeding Rs. 190/- per 50 Kg, bags or Rs. 3800/- per tones. In case of the MRP of the 50 Kg bag of cement exceeded Rs. 190/- such cement attracted different rate of duty in terms of Sl. No. 1A(ii) of Notification No. 4/2006-CE as amended by Sl. No. 51 of Notification No. 12/2012 dated 17.03.2012. In case the cement is cleared in bulk (other than in packaged form) different rates were stipulated from time to time in respect of such cement in terms of Sl. No. 1C/ Sl. No. 52 of the table annexed to the above notification. In view of the third proviso to the explanation to Sl. No. 1C of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods solely based on the declaration given on the packages of the commodity. The PC Rules are not providing for the protection of such consumers. Therefore, the PC Rules do not contain any provision requiring the manufacturer to declare the details of the commodity including the MRP to be declared on the packages of such commodity sold to the said consumer. When Explanation to Rule 2A(b) defines industrial consumers or institutional consumers it only refers to those consumers who directly purchase the commodity from the manufacturer for their own consumption. In the present case, the entire quantity of cement on which the differential duty has been demanded was directly purchased by the consumers for their consumption. In other words, the consumers in question had bought the cement from the Respondents, not based on the declaration on the packages and they also had not sold the said cement to any other consumer who had to purchase the cement based on the declaration given on the packages of cement. Therefore, the entire quantity of cement cleared in bags with clear indication that they are for use of Industrial or institutional consumers and not for retail sale, are excluded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sikandrabad Cement Vs. CCE 2019(3) TMI 44 (viii) M/s Bharathi Cement Corporation Vs. CCE- Noida 2019(3)TMI 44 (ix) Shree Digvijay Cement Corporation Co. Ltd. Vs. CCE, Rajkot 2019(6) TMI 1543 5. Heard both sides and perused the records. The core issue that comes up for our consideration in these appeals is whether the clearances of cement made by the assessee will satisfy the conditions of Entry 1C of Notification No. 4/2006-C.E., dated 1-3-2006 to benefit from concessional rate of duty. 5.1 We find that the said entry 1C covers the following goods : All goods, whether or not manufactured in a mini cement plant, not covered in S. No. 1B, other than those cleared in packaged form; Discernibly, to benefit from the said exemption, the primary requirement is that the goods should not be other than those cleared in packaged form The Third Proviso to the Entry 1C of the notification clarifies which goods should be considered as cleared in other than packaged form . The said provision reads as under : 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 Commod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctively. The relevant portion of the decision is reproduced below for ready reference : 5.2 From the above, it can be seen that packages of commodities containing a quantity of more than 25 kg. or 25 litre excluding cement and fertilizers sold in bags upto 50 kg. and packaged commodity meant the industrial or institutional consumer are excluded from the provisions of the said Rules. In other words, the Rules exclude two categories - the first category is packaged commodity containing a quantity of more than 25 kg. or 25 litre and cement and fertilizer bags containing more than 50 kg. The second category is packaged commodity meant for industrial or institutional consumer. As regards the second category there is no restriction with respect to the quantity of the goods contained in the package. There is a semi colon between the two clauses. This would clearly indicate that the word and between the two clauses have to be read disjunctively and not conjunctively. In other words, in respect of both the above categories, the provisions of PC Rules would not apply. 7. In respect of the clearances it will necessarily have to be held as packages not intended for retail sale a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of demand of Rs. 3,11,188/-. We find that the said demand was confirmed in respect of the clearance of the Cement in 50 Kgs bags to individual consumers. The submission of the appellant is that since the said clearance is made directly by the appellant to the individual consumers, there is no intermediary involved such as distributor/dealer etc. and the goods were not sold through a Retail Sale Shop Agency or any other instrumentality, therefore, such clearances is not covered under retail sale, accordingly, there is no need of a fixing retail sale price on the packages in terms of the legal metrology (Packaged Commodities) Rules, 2011. We find that the adjudicating authority while confirming the demand of Rs. 3,11,188/- given the following findings:- 15.16 Further, the assessee in their defence reply submitted a copy of 010 63 to 68/BVR/Commissioner/2008 dated 31.12.2008 passed by the Commer Central Excise, Bhavnagar in case of M/S Ultratech Cement limited Gujarat Cement Works. Amreli Gujarat on the same issue wherein the demand against clearances made to only individual customers are confirmed. An inquiry regarding the status of the said OIO is made with Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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