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2023 (10) TMI 1080 - AT - Central ExciseClearance of Cement - Benefit of exemption - Valuation - Fixation of MRP - whether the Assessee s goods are covered by the mischief of the third proviso to S.No.2 of the explanation to the exemption notification 4/2007-CE dated 01.03.2007? - time limitation - HELD THAT - S.No.2 of the explanation defines what constitutes the retail sale price and its third proviso says where the retail sale price of the goods are not required to be declared under 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. In other words, if the retail sale price is not required to be declared and hence also not declared, the goods shall be treated as if they are cleared in other than packaged form and charged to duty accordingly. Such cases are covered by S.No.1C of the exemption notification. In the case of RAIN COMMODITIES LTD. VERSUS COMMISSIONER 2011 (4) TMI 1303 - SC ORDER , the Tribunal made a factual observation that the cement was cleared in bulk and denied the benefit of notification at S.No.1A and instead gave the benefit at S.No.1C. This judgement was followed by the Commissioner in the impugned order. There is another judgement in the case of COMMISSIONER VERSUS SAGAR CEMENTS LTD. 2011 (2) TMI 1379 - SC ORDER in which cement was cleared in 50Kg 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. Evidently the cement was cleared in large quantities but packed in 50kg bags to institutional buyers, after declaring the retail sale price on each bag even though they were not required to so declare under the Standards of Weights and Measures (Packaged Commodities) Rules 1977. Thus, the present case is similar to the case of Sagar Cements Ltd, which attained finality at the level of Hon ble Supreme Court, except to the extent that there was no letter from the Controller of Legal Metrology requiring the Assessee to declare the retail sale price in the present case. Time Limitation - HELD THAT - The demand is also time barred as no evidence of fraud, or collusion or wilful misstatement or suppression of facts, with an intent to evade payment of duty has been brought on record. It was only a case of the Assessee s claim Vs the Revenue s claim. In such a case, once the ER-1 returns are filed, it would be reasonable to expect the Revenue officers to assess them and in case of any dispute, raise a demand within the normal period of limitation. Therefore, issue is also in favour of the Assessee on the ground of limitation. As the demand is not sustainable on merits as well as limitation, the question of interest and imposition of penalties on the Assessee do not arise. In view of the above, the Impugned Order needs to be set aside - appeal of assessee allowed.
Issues Involved:
1. Applicability of Exemption Notification No. 4/2007-CE. 2. Invocation of extended period of limitation under Section 11A of the Central Excise Act, 1944. 3. Imposition of interest and penalties under Rule 25(1) of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944. Summary: 1. Applicability of Exemption Notification No. 4/2007-CE: The Assessee claimed the benefit of exemption Notification No. 4/2007-CE (S.No.1A) for cement cleared in 50 kg bags at a retail sale price not exceeding Rs. 190 per bag. The dispute centered on whether the Assessee's goods were covered by the third proviso to S.No.2 of the explanation to the exemption notification, which states that if the retail sale price is not required to be declared and thus not declared, the goods shall be treated as cleared in other than packaged form and charged accordingly. The Tribunal found that even if the retail sale price was not required to be declared, it was declared by the Assessee, thus the third proviso did not apply. The Assessee's case was found to be similar to Sagar Cements Ltd, where the benefit of exemption at S.No.1A was extended. 2. Invocation of extended period of limitation under Section 11A of the Central Excise Act, 1944: The Tribunal held that there was no evidence of fraud, collusion, wilful misstatement, or suppression of facts by the Assessee. The Assessee had filed ER-1 returns and responded to audit observations. Therefore, the invocation of the extended period of limitation for issuing the show-cause notice was not justified. The demand was found to be time-barred. 3. Imposition of interest and penalties under Rule 25(1) of Central Excise Rules, 2002 read with Section 11AC of the Central Excise Act, 1944: Since the demand was not sustainable on merits and was also time-barred, the Tribunal concluded that the question of interest and imposition of penalties on the Assessee did not arise. The impugned order was set aside, and the appeal filed by the Assessee was allowed, while the appeal filed by Revenue was dismissed.
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