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TMI Blog2023 (10) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... oking extended period of limitation under proviso to Section 11A of Central Excise Act, 1944 demanding central excise duty of Rs. 69,82,828/- along with interest and proposing to impose penalties under Rule 25(1) of Central Excise Rules read with Section 11AC of the Central Excise Act, 1944. 3. After following due process, learned Commissioner passed the impugned order, confirming the demand of duty in respect of clearances made by the Assessee between March 2007 to February 2009, under the Proviso to Section 11A. He also demanded interest on this amount under Section 11AB and imposed a penalty equivalent to the differential duty under Rule 25(1) of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Aggrieved by this order, the present appeals have been filed by the Assessee & Revenue. 4. The Assessee firm had cleared, during 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 Rs. 190/- per bag. They claimed the benefit of exemption Notification No. 4/2007-CE dated 01.03.2007 (S.No.1A), which was denied by the impugned order, hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for determining the rate of duty under respective S.Nos. referred to above: Provided further that if the declared sale price on wholesale package and on the standard packages is different in terms of per tonne equivalent sale price, then, the per tonne equivalent sale price of the wholesale package or per tonne equivalent retail sale price of the standard packages, whichever is higher, shall be taken into 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; 5. As can be seen, there is no dispute that the goods manufactured by the Assessee fall under the Chapter Heading 252329 and that it is cleared in packaged form i.e., 50 Kg bags. S.No.1 of the exemption notification is not applicable to the present case as the Assessee is not a mini cement plant. The Assessee claimed the benefit of S.No.1A, which is applicable for "all goods whether or not manufactured in mini cement plant, not covered by S.No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Tribunal was also appealed by the Revenue in civil appeal No 1901-1905 of 2011, which was dismissed by the Hon'ble Apex Court. 9. Thus we have two judgements, which reached finality at the hands of the Hon'ble Apex Court, one, in which the benefit of exemption notification Entry No 1C was only extended and another, in which the benefit of exemption notification at S.No.1A was extended. 10. Learned Commissioner in the impugned order has distinguished the case of Sagar Cements Ltd (supra) on the ground that in that case there 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, thereafter, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bags and retail sale price was printed as per the directions of the Controller of Legal Metrology, Govt of Andhra Pradesh. The Assessee relies on this case. 14. In order to examine the present case, the third proviso in question is reproduced below: "Provided also that where the retail sale price of the goods are not required to be declared under Standards of Weights & Measures (packaged commodities) Rules 1977, and thus not declared, the commodity shall be determined as is in the case of goods cleared other than packaged form". 15. 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 S.No.2 of the explanation to the Notification which reads as follows:- "provided that if the goods are cleared in wholesale pack ..... X X X X Extracts X X X X X X X X Extracts X X X X
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