TMI Blog2024 (1) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1C of Notification No.4/2006-CE dated 1.3.2006 as amended. The Tribunal in the case of GRASIM INDUSTRIES LTD. (UNIT-I) VERSUS COMMISSIONER OF C. EX., TRICHY [ 2008 (10) TMI 462 - CESTAT, CHENNAI] has discussed in detail the issue as to whether R.S.P has to be affixed on cement bags of 50 kgs and held that We have found favour with the assessee s case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl. No. 1B or 1C of Notification No. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended. Thus, the allegation in the SCN as to whether the appellant has cleared cement to industrial / institutional consumers is too vague to be the basis for confirmation of demand. Further, adjudication after such lapse of time alleging that the appellant has not furnished evidences to show that the clearances of such 50 kg. bags have been made only to industrial / institutional consumers, is not justifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced below for ready reference : Sl.No. Chapter heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate (1) (2) (3) (4) 1. 253329 All goods, manufactured in a mini cement plant cleared in packaged form- i. Of retail sale price not exceeding Rs.190 per 50 kg bag equivalent retail sale price not exceeding Rs.3800. ii. Of retail sale price exceeding Rs.190 per 50 kg bag or of per tonne equivalent retail sale price exceeding Rs.3800 Rs.220 /PMT Rs.370/PMT 1A 2523 29 All goods, whether or not manufactured in a mini cement plant, not covered in S.No.1 and cleared in packaged form o retail sale price not exceeding Rs.190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding Rs.3800; Rs.350 / PMT 1B 2523 29 All goods, manufactured in a mini cement plant, other than those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (a) Institutional Consumer Means those consumers who buy packaged commodities directly from the manufacturers / packers for service industry like transportation (including airways, railways,) hotel or any other similar service industry. (b) Industrial Consumer Means those consumers who buy packaged commodities directly from the manufacturers/ packers for using the product in their industry for production etc. 4. The department was of the view that as per Rule 2A, the cement cleared in packaged form upto 50 Kg., even though cleared to institutional or industrial consumers, would get covered under the provisions of Chapter II of SWM (PC) Rules, 1977 and therefore the M.R.P (R.S.P) has to be declared mandatorily on the cement bags. 5. On verification it was noticed that the appellant had cleared large quantity of cement packed in 50 kg. bags to industrial / institutional consumers during the period from December 2007 to June 2017 and availed the concessional rate under Sl.No.1C of the Notification. So also, they had cleared cement in bags of 50 kgs. for their own use within the factory premises for various civil works undertaken by them. The department was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /15/25/15/2009- C.Ex. Adj. III Rs.40,64,113/- 3 SCN No.47/2009 dt. 02.06.2009 May, 2008 to July 2008 V/15/25/48/2009-C.Ex. Adj. III Rs.39,68,187/- 4 SCN No.65/2009 dt. 03.09.2009 August 2008 to June, 2009 V/15/25/89/2009-C.Ex. Adj. III Rs.2,06,89,369/- 5 SCN No.50/2010 dt. 28.07.2010 July, 2009 to December 2009 V/15/25/45/2010- C.Ex. Adj. III Rs.1,52,40,081/- 6 SCN No.03/2011 dt. 02.02.2011 January 2010 to October 2010 V/15/25/04/2011- C.Ex. Adj. III Rs.1,61,62,822/- 7 SCN No.65/2011 dt. 02.02.2011 November 2010 to February 2011 V/15/25/65/2011- C.Ex. Adj. Rs.59,86,141/- 8 SCN No.10/2012 dt. 23.03.2012 March 2011 to August 2011 V/15/25/08/2011- C.Ex. Adj. Rs.75,06,961/- 9 SCN No.32/2012 dt. 04.09.2012 September, 2011 to March, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant. 8.2 The Appellant filed their replies to the SCNs promptly and requested for an opportunity of personal hearing in the matter. The Appellant is given to understand from the Impugned Order that the SCNs were issued as a protective measure and that the notices had been transferred to the call book. The Appellant was never put to notice of the fact that the demands in the SCNs were transferred to the call book. 8.3 A personal hearing was conducted for adjudicating these SCNs on 30.08.2021. The Appellant was directed to submit evidence to prove that the clearances were indeed made to institutional/industrial consumers, a fact which was not raked up in any of the SCNs. The SCNs culminated in the impugned order wherein the demand of INR 24,01,77,638/- was confirmed along with interest under Section 11AB of Central Excise Act 1944. 8.4 In paragraph 16, the impugned Order has set aside the demand raised in respect of clearances made for own use by relying on the Order dated 27.11.2019 issued by the Hon ble Apex Court in CCE vs. Madras Cements 2020 (371) E.L.T. A42 (S.C.). Further, the SCNs had proposed penalty under Rule 25 of the Central Excise Rules 2002, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra) has been subsequently followed by the CESTAT in the case of ACC Ltd. vs. CCE 2018 (359) ELT 572 (Tri.-Chennai) and Viva Dry Mix vs. CCE - 2020 (12) TMI 504 - CESTAT NEW DELHI. A.5. In any case, it is submitted that the clearances made by the Appellant satisfies both the conditions as the cement is packed in bags of 50kg and sold to institutional and industrial consumers. Since both the conditions are cumulatively satisfied the question of invoking the 1977 Rules does not arise. B. The SCNs are vague and are liable to be set aside on this sole ground alone. B.1. It is submitted that where the sale was undertaken by the Appellant in loose or through retail sale by affixing RSP there is no dispute. Further the demand with respect to cement cleared in 50 kg bags for self-use has also been dropped in the impugned order. The SCNs only alleged that cement in 50kg bags were cleared without affixing RSP to institutional/ industrial consumers and that the exemption was applicable only to cement cleared in bags of 50 Kgs. B.2. It is submitted that the entire demand is based on a mere misapprehension that one of the conditions is not satisfied - namely, that the cement w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of concessional rate of duty provided under SI. No.1C of Notification No. 4/2006-CE would be available as the Appellant has cleared cement in 50 kgs bags to government companies, construction companies and industrial / institutional consumers. Reliance is placed on the following decisions wherein it was held that the benefit of SI. No.1C of Notification No. 4/2006-CE would be available for clearance of cement made to institutional consumers in 50 kgs bags: i. Prism Cement Ltd. Vs. CCE 2017 (357) ELT 1003 (T.) ii. Diamond Cement Vs. CCE 2017 (352) ELT 177 (T.) iii. Dalmia Cements (Bharat) Ltd. Vs. CCE 2018 (361) ELT 917 (T.) The above decisions were affirmed by Hon ble Apex court in Commissioner v. Madras Cements Ltd 2020 (371) ELT A42 (S.C.) C.3. The Appellant submits that where the transaction does not qualify to be a retail sale as defined under PC Rules, there was no requirement to affix MRP. In this regard, reliance is placed on the following decisions of CESTAT. i. Diamond Cement vs. CCE - 2017 (352) ELT 177 (T.) Affirmed by Supreme Court in CCE vs. Madras Cements Ltd. - 2020 (371) ELT A42 (S.C.) ii. UltraTech Cement Ltd. vs. CCE - 2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner of GST CE in W.P. No. 12074 of 2023 wherein the Hon ble Madras High Court held that proceedings could not be allowed to continue after a period of 12 years. It was held that adjudication of proceedings after a long period would cause serious prejudice to the parties and such proceedings are barred by limitation and is unjustifiable. As on date, no revenue appeal has been filed against the Order dated 22.11.2023. D.4. Further Reliance is placed on paragraphs 18, 22, 23 of the decision in Steel Authority of India Limited vs Office of Assistant Commissioner - 2022 (11) TMI 1393- Madras High Court wherein the Hon ble High Court held that the adjudication of a notice cannot be protracted endlessly for a period of 21 years by relying on the phrase where it is possible to do so in Section 11A (11) of the Excise Act. The Revenue has filed Writ Appeals Nos. 1369,1371,1373,1377,1379 and 1380 which are pending before the Division Bench of the Hon ble High Court of Madras as on date. However, no stay operates against the Order of the Ld. Single Judge cited above and hence the findings have attained finality. The Appellant was not put to notice of the SCNs being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther, the Impugned Order has confirmed the demand on tariff rate, whereas, even if the concessional rate is denied to the Appellant the cement clearances would be amenable to the rate of duty based on Sl. 1A of the NN 04/2006 of Sl. 51 of NN 12/2012-C.E. It is prayed that the appeal may be allowed. 9. Ld. A.R Shri M. Ambe appeared and argued for the Department. The show cause notice dated 5.1.2009 was adverted to by the Ld. A.R to submit that as per Rule 2A of the SWM (PC) Rules, 1977 both the conditions have to be satisfied to be eligible for the concession at Sl.No.1C of Notification No.4/2006. In para-9 of SCN, it is specifically alleged that the appellant failed to affix retail price on the cement bags weighing 50 kgs. 10. In para-10, it has been specifically alleged that even though it is contended by the appellant that they have cleared goods for industrial / institutional consumers it is not known to the department as to whether the buyers are institutional or industrial consumers. At the time of adjudication, the appellant did not produce evidences as to whether buyers are industrial or institutional consumers. The original authority has therefore correctly confirme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nai) has discussed in detail the issue as to whether R.S.P has to be affixed on cement bags of 50 kgs. And the eligibility of the notification no.4/2006. The said order of Tribunal along with other cases was disposed in the batch cases referred above The relevant part of discussions of the Tribunal in Grasim Industries is as under : 2 . The learned Commissioner has demanded duty of over Rs. 2.8 crores from the appellants in respect of cement cleared in 50 Kg. packs to Govt. companies, construction companies and other industrial/institutional consumers during the period May 2007 to February 2008 by denying them the benefit of Notification No. 4/2006-C.E., dated 1-3-2006 (Sl. No. 1C). The learned Commissioner has also imposed equal amount of penalty on them. The Notification, at SI. No. IC thereof, prescribed Rs. 400 per tonne as the rate of duty of excise for goods falling under SH 2523 29 of the CETA Schedule, not covered under Sl. No. 1B, other than those cleared in packaged form. Admittedly, the appellant s cement plant is not a mini cement plant defined under the Explanation to Sl. No. 1C of the Notification and consequently the subject goods were not covered under Sl. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y pointed out by the learned counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Board s clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee s case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl. No. 1B or 1C of Notification No. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended. The Board s clarification squarely covers the case in favour of the assessee. 5 . In the result, the benefit of the Notification would be admissible to the assessee and the impugned demand is liable to be vacated. The appeal is allowed. The stay application also gets disposed of accordingly. 14. After the afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for retail sale shall not apply to the following a per Rule 2A of the Standard of Weights and Measures (Packaged Commodities) Rues, 1977. For the sake of convenience, the Rule 2A is reproduced as below : 9. In the instant case, the assesses have cleared cement bags/packages containing 50 kgs. of cement without affixing / printing the Retail Sale Price on packages i.e. in the packages containing 50 kgs. of cement, it is mentioned as NOT FOR RETAIL SALE, MEANT FOR INDUSTRIAL COSUMER / INSTUTIONTAL CONSUMER /SELF RMC CONSUMPTION . As per Rule 2A ibid, cement and fertilizers sold in bags upto 50 kgs. are excluded from the applicability of the Chapter and hence, the cement bags cleared in 50 kgs without affixing Retail Sale Price by the assessee is not eligible for concessional rate of duty because the provisions of Rule 2A(a) and (b) are to be read together and not in isolation in view of the word and I between (a) and (b) of Rule 2A though the packages cleared by the assessee are meant for industrial and institutional consumer, in other words, both the conditions of (a) and (b) under Rule 2A are to be fulfilled by the assessee for claiming exemption from declaration / af ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix R.S.P on the cement bags as per Rule 2A. In para-10 of SCN, there is minor and vague averment that it is not exactly known whether the appellant has cleared cement to industrial / institutional consumers and therefore the clearances do not fall under the term industrial or institutional consumer . However, the show cause notice which has been issued after verification of returns / records and accounts of the assessee does not allege anywhere that any such bags which are cleared with the remark affixed not for retail sale, meant for industrial consumer/institutional consumer/self R.S.P consumption has been cleared in retail sale. The SCN does not mention about even a single instance of clearances made to retail sale, or any averment as to what is the basis of such averment. The department has to furnish the details of the allegation and basis of the demand of duty in the show cause. Without such details, the appellant will not be able to put forward their defence in a proper manner. If the department had mentioned any particular transaction(s) or invoice(s) for doubting that such bags have been cleared for retail sale, it would have enabled the appellant to clarify in their r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the clarification issued by the Board vide Circular No.124/02/2008-CX-3. dt. 12.6.2008. 19. In the case of M/s.Heidelberg Cement (India) Ltd. and Ultra Tech Cement Ltd. Vs CCE - 2021 (8) TMI 251 CESTAT MUMBAI [2015 (315) ELT 53 (Tri.-Mumbai) the issue as to whether both the conditions in Rule 2A has to be read conjunctly or disjunctively was discussed. Relevant para of the order reads as under : 5.6 In the Grasim Industries case (supra), this issue was specifically examined by this Tribunal and it was held as follows :- As rightly pointed out by the learned Counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Board s clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee s case in view of the clarification issued by the C.B.E. C., which is to the effect that no RSP requires to be printed on the goods sold to industrial/institutional consumers as defined under the rules fram ..... X X X X Extracts X X X X X X X X Extracts X X X X
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