2017 (1) TMI 1578 - AT - Central Excise

Benefit of concessional rate of duty - sale of cement - cement sold to the agencies on MRP basis, but in some cases selling directly to the consumers which includes the Government agencies, builders, institutions and individuals - export to Nepal - Held that - the assessee-appellants have sold the goods directly to the consumer which includes the Government agencies, builders, institutions and individuals without involving a retail sale agency or other institutionally, and has, therefore, not fulfilled the criteria of retail sale . Hence, the definition of Retail Sale as per Rule 2(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 will not apply - the sale to the individual without any intermediary person is entitled for concessional rate of duty. Sale to Nepal - Held that - where retail sale price was not required to be cleared other than package form would be entitled to the benefit of the Notification No. 4/2006-C.E - the benefit of Notification No. 4/2006-C.E., dated 1-3-2006 was granted. Appeal allowed - decided in favor of appellant-assessee.

Summary

Issues:
1. Interpretation of "retail sale" criteria for concessional rate of duty.
2. Eligibility for concessional rate of duty on direct sales to consumers.
3. Application of Notification No. 4/2006-C.E. for exports to Nepal.

Analysis:
1. The case involved appeals by both the assessee and the Department against an Order-in-Original regarding the denial of MRP based exemption for cement sales. The Tribunal examined the definition of "retail sale" under Rule 2(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. It was established that direct sales to consumers without intermediaries do not fulfill the criteria of "retail sale," allowing the assessee to avail the concessional rate of duty. This interpretation was supported by previous rulings, including Prism Cement Ltd. v. CCE, Bhopal.

2. The Tribunal considered the eligibility for concessional duty rates on direct sales to consumers, including Government agencies, builders, and individuals. It was noted that when goods are sold directly to individuals without intermediaries and not meant for resale, the concessional rate of duty can be availed. The Tribunal referred to a specific case where cement packages were cleared without marketing of RSP and with an endorsement of "not for re-sale," supporting the assessee's claim for the concessional rate of duty.

3. Regarding exports to Nepal, the Tribunal referenced a case involving Ultratech Cement Ltd. where the benefit of Notification No. 4/2006-C.E. was granted for exports to Nepal. The Tribunal highlighted that the provisions of Weights & Measures Rules do not apply to goods exported abroad, allowing for the benefit of the exemption notification. Rulings in similar cases were cited to support the decision to grant the benefit under Notification No. 4/2006-C.E. The Tribunal set aside the impugned order and allowed the appeal filed by the assessee-appellants, resulting in the dismissal of the cross-appeal by the Department.