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2018 (12) TMI 1163 - AT - Central ExciseValuation - cement - clearances to Deputy Commissioner, Singhbhum, Jamshedpur in 50 kg bags on which RSP of ₹ 189 was fixed - N/N. 4/2006-CE dated 01.03.2006 - Held that - Even though RSP has been embossed on such bags, it is obvious that such clearances do not fall in the category of retail sale, but are in the nature of sale to institutional customers - Notification No.4/2006 specifically provides that clearances made in those cases where RSPs were not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 are to be charged to duty at the rate as in the case of goods cleared in other than packaged form. Such goods are chargeable @400 per MT in terms of Sl. No.1C of the Notification ibid - there is no justification to charge excise duty @₹ 600 per MT (tariff rate) - the differential duty demand restricted to the difference between ₹ 400 per MT (as per 1C) and ₹ 350 per MT (as per 1A). Cement to retail customers in 50 kg bags on which RSP was fixed - Held that - There is no justification for charging excise duty at tariff rate in view of the fact that different RSPs have been affixed only for clearances to different areas. But there is only one RSP on a single package and there was no case of two or more RSPs printed on any single package. Consequently the mischief of Explanation III of the Notification will not be incurred. Since duty is already paid @12% of the RSP, the demand for differential duty made in the impugned order is set aside, in respect of clearances to retail customers. Penalty - Held that - The issue of the present case is a question of interpretation of the Notification No.4/2006. It cannot be said that the appellant had any malafide intention and hence there is no justification for imposition of any penalty - penalty set aside. Appeal allowed in part.
Issues:
1. Substitution of Cause Title in a Miscellaneous Application. 2. Interpretation of Notification No.4/2006-CE regarding duty rates for cement clearances. 3. Dispute over the classification of clearances to Deputy Commissioner as retail sales. 4. Application of duty rates based on Retail Sale Price (RSP) for different categories of clearances. 5. Justification for penalty imposition based on interpretation of the Notification. Issue 1: Substitution of Cause Title in a Miscellaneous Application: The appellant filed a Miscellaneous Application for the substitution of the Cause Title due to a change in the company name. The Certificate of Incorporation issued under Rule 29 of the Companies (Incorporation) Rules, 2014, demonstrated the change from M/s Lafarge India Ltd. to M/s Nuvoco Vistas Corporation Ltd. The Tribunal allowed the application based on the presented evidence. Issue 2: Interpretation of Notification No.4/2006-CE regarding duty rates for cement clearances: The appeal challenged Order-in-Original No.21/Commissioner/09 dated 31.03.2009, concerning the duty rates for cement clearances made by the appellant. The Notification provided different duty rates based on the Retail Sale Price (RSP) of the cement, with specific rates for packaged and non-packaged forms. The Tribunal analyzed the provisions of the Notification to determine the correct duty rates applicable to the appellant's clearances. Issue 3: Dispute over the classification of clearances to Deputy Commissioner as retail sales: The Department contended that all varieties of cement were notified under Section 4A of the Central Excise Act, 1944, and argued for the application of the highest Maximum Retail Price (MRP) for duty calculation. However, the Tribunal found that clearances to the Deputy Commissioner were not retail sales but sales to institutional customers, warranting a different duty rate under the Notification. Issue 4: Application of duty rates based on Retail Sale Price (RSP) for different categories of clearances: For clearances to retail customers with varied RSPs, the Tribunal ruled that the duty should be calculated based on the specific RSP affixed on each package. The appellant had already paid duty at the time of clearances, and the demand for differential duty based on the highest RSP was set aside. Issue 5: Justification for penalty imposition based on interpretation of the Notification: The Tribunal determined that the issue at hand involved the interpretation of the Notification, and there was no evidence of malafide intention on the part of the appellant. Consequently, the Tribunal set aside the imposition of any penalty, citing the absence of justification for penal action. In conclusion, the Tribunal partially allowed the appeal, adjusting the differential duty demand and setting aside the penalty imposition based on the interpretation of the Notification and the specific circumstances of the appellant's clearances.
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