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TMI Blog2025 (5) TMI 1014X X X X Extracts X X X X X X X X Extracts X X X X ..... in two categories viz: - (i) Trade and Non Trade Parties (Industrial/Institutional buyers): Dispatches from depot/dump are primarily made to Trade parties only. There is no sale through consignment agents. Dealers are supplied only in trade i.e. in MRP bags from both factory and depot/dumps. (ii) To non-Trade sale: under SI No. 1C of the Notification No. 4/2007-CE dated 1.3.2007 as amended from time to time. 2. But it is observed that in some cases they are paying duty by availing benefit of exemption under Notification No. 4/2007 CE dated 1.3.2007, as amended from time to time under SI No. 1C in case of non-Trade sale whereas in similar cases they are paying duty as per SI No. 1A of Notification No. 4/2007-CE dated 1.3.2007 as amended from time to time as suited in their interest. 3. It is alleged that appellants, in case of non-trade sale, have wrongly availed the benefit of Sr. No. 1A of the Notification and thus have short paid central excise duty, whereas they should have paid Central Excise duty under Sr. No. 1C of the said Notification for all non-trade sales. 4. Thus a show cause notice bearing no. 10/2013 and 11/2013 dated 29.01.2013 was served upon the appellants a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... / dumps. 10. It is submitted that Sr. No. 1A of Notification No. 4/2006 prescribes duty on goods having retail sale price. The goods in question when cleared from the factory were intended to be sold to Trade parties, i.e. in retail sale. 11. Rule 2(p) of PC Rules defines 'retail package' as packages which are intended for retail sale to the 'ultimate consumer' which excludes industrial or institutional consumers. Rule 2A of PC Rules excluded the following categories from the requirement of declaring RSP: - * Packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags upto 50kg; and * Packaged commodities meant for industrial consumers or institutional consumers. 12. In the present case, the cement bags being of upto 50 kg were not excluded from declaration of RSP by first condition. Further, since at the time of removal from factory, since same goods/cement bags in question were not meant for industrial / institutional consumer, they were not excluded from declaration of RSP due to said second condition also. 13. For this reason, RSP was affixed as required in terms of PC Rules on the goods in question. It was on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on following decisions: - * Parasakti Cement Industries Ltd. v. CCE, Guntur, 2020 (6) TMI 329 - CESTAT Hyderabad * Neem Metal Proudcts Ltd. v. CCE, Delhi-III, 2017 (7) G.S.T.L. 76 (Tri. -Chan.) * CCE, Jalandhar v. Royal Enterprises, 2016 (337) ELT 482 (SC) * CCE, Noida v. Accurate Chemical Industries, 2014 (310) ELT 441 (All) 18. Once the demand itself is required to be dropped on merits and on limitation in above terms then penalty is not imposable and interest is also not payable. With these submissions, the order under challenge is prayed to be set aside. 19. While rebutting the submissions made on behalf of appellant, Learned Authorized Representative appearing for the department submitted that the genesis of the disputes pertain to changes made in excise duty structure for cement in the budget 2007 and amendment made in the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 [now Legal Metrology (Packaged Commodities) Rules, 2011] with effect from 14.1.2007. With respect to changes in excise duty structure for cement in the budget 2007, it is submitted that prior to the budget 2007, cement falling under sub-heading 2523 29 attracted specific e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Thus, the provisions related to non-declaration of retails sale price under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, would apply to determine excise duty for cement cleared in other than packaged form and provisions related declaration of retails sale price under the PC Rules, 1977 would apply to determine duty in respect of cement cleared in packaged form. 24. Excise duty under S. No 1A and 1C of notification No 4/2006CE is exclusive to each other and mere declaration/non-declaration of retail sale price would not make clearance eligible under S. No 1Aor 1C without satisfying the other requirements indicated in these entries. Learned Departmental Representative has relied upon the following decisions: (i) Heidelberg Cement (India) Ltd. reported as 2015 (315) E.L.T. 53 (Tri. Mumbai) (ii) Grasim Industries Ltd. (Unit-I) reported as 2015 (315) E.L.T. 53 (Tri. - Mumbai) (iii) Jaypee Rewa Plant reported as 2018 (360) E.L.T. 98 (Tri.-Del) (iv) Rain Commodities Ltd. reported as 2011 (267) E.L.T. 286 (Tri.-Bang)/Rain Commodities Ltd. reported as 2011 (269) E.L.T. A22 (SC) (v) Nuvoco Vistas Corporation Ltd. reported as 2019 (370) E.L.T. 321 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of retail sale price not exceeding Rs. 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding Rs. 3800; (ii) of retail sale price exceeding Rs. 190 per 50 kg bag but not exceeding Rs. 250 per 50 kg bag or of per tonne equivalent retail sale price exceeding Rs. 3800 but not exceeding Rs. 5000; Rs. 350 per tonne 12% of retail sale price - -] 1B. 2523 29 All goods, manufactured in a mini cement plant, other than those cleared in packaged form; Rs. 250 per tonne 1 1C 2523 29 All goods, whether or not manufactured in a mini cement plant, not covered in S.No. 1B, other than those cleared in packaged form; Explanation - For the purposes of S. Nos. 1, 1A, 1B and 1C,- (i) "mini cement plant" means- (i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000tonnes per annum and the total clearances of cement produced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) Goods manufactured in a mini cement plant (i) Cleared in packaged form - Entry No. 1 (ii) Cleared in unpackaged form - Entry No. 1B (b) All goods whether or not manufactured in mini cement plant (i) cleared in packaged form - Entry 1A (ii) Cleared in non-packaged form - Entry 1C 28. Now we see that the department has questioned the benefit of S.No. 1A of this notification as availed by the appellant. As apparent from Entry No. 1A, the following conditions are required to be met with. (i) All goods (cement herein) is to be cleared in packaged form. (ii) The retail price is not exceeding Rs.190 per 50 kg bag or not exceeding Rs. 3800 per tonne in which case duty at the rate of 350 per tone is to be paid. (iii) The retail price is exceeding 190 per 50 kg but is not exceeding Rs. 250 per kg. Similarly, the price is not exceeding Rs.5,000/- per tonne in which case duty at the rate of 12% of retail sale price is to be paid. The another clarity as is apparent from the said notification is that the notification as amended during the relevant period, is silent about any distinction between trade (consumer) and non-trade (industrial/institutional buyers) parties as has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. 4/2007 which talks about the rate of duty on the goods which are cleared in unpackaged form. 32. In the light of these observations, the entire show cause notice and even the Order-in-Original is held to be mere presumptive of the fact that once the goods are cleared in packaged form the clearance cannot be the institutional/industrial clearance. It is a retail clearance where retail price has to be mandatorily fixed and duty has to be paid based on the retail price. But the entire above discussion about the notification in question and even about Weights and Measures Rules makes it clear that mere affixations of RSP is not sufficient to hold that the clearance was not the institutional/industrial sale. In such circumstances, it was Entry no. 1A which is applicable to the given set of facts, specifically in light of the admitted fact that the goods were cleared in packaged form. 33. In view of above discussion, we hold that none of the decisions as relied upon by the department is applicable to the impugned set of facts and circumstances. The decisions are purely meant to create a distinction between the institutional consumers and the actual consumer. The Board's own cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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