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2017 (11) TMI 1515 - AT - Central ExciseRefund of excess duty paid - N/N. 04/2006-CE - whether the assessee herein is required to print RSP or otherwise for the cement cleared to A.P. State Housing Corporation Limited in bulk supply? - Held that - an identical issue is decided by this Bench in the case of Sagar Cements Ltd., 2010 (4) TMI 418 - CESTAT, BANGALORE wherein benefit of Notification No.04/2006 as been extended. As regards the reliance placed by the Revenue on the judgment of the Tribunal in the case of Rain Commodities Ltd., 2011 (1) TMI 490 - CESTAT, BANGALORE , we find that the judgment of the Tribunal was first of all the ex-parte order; facts, in appeal as recorded by Bench is that the said Rain Commodities Ltd., has been formed to take up the activities of building houses for public and therefore is service institution and the clearance of the product is not on retail basis and is in terms of the agreement between the parties, there is no requirement of printing of MRP on the packages in which the product is packed; this factual aspect is noted by the Lower Authorities and being not disputed, the Bench held the benefit of Notification No.04/2006-CE is cannot be extended. Appeal dismissed.
Issues:
Interpretation of Notification No.04/2006-CE for Central Excise Duty on cement sales to Andhra Pradesh State Housing Corporation Limited (APSHCL), applicability of institutional consumer status, benefit extension, unjust enrichment consideration. Analysis: Issue 1: Interpretation of Notification No.04/2006-CE The issue revolves around the correct interpretation of Notification No.04/2006-CE regarding the Central Excise Duty on cement sales to APSHCL. The appellant initially paid duty at a certain rate per metric ton, later realizing the excess payment and filing for a refund. The First Appellate Authority interpreted the Notification to extend benefits to the appellant as an industrial or institutional consumer, leading to the refund approval subject to unjust enrichment verification. Issue 2: Applicability of Institutional Consumer Status The Departmental Representative argued that APSHCL, being in the service industry, does not qualify as an institutional consumer, thus the benefit of the Notification should not apply. The Representative emphasized that the retail sale price was printed on the bags supplied to APSHCL, indicating a retail sale rather than an institutional transaction. Reference was made to a Tribunal decision upheld by the Supreme Court to support this argument. Issue 3: Benefit Extension and Precedent The counsel for the assessee cited a previous Tribunal decision upheld by the Apex Court, where a similar benefit extension was granted in a comparable case. The Tribunal found that the issue was settled law and ruled in favor of extending the benefit based on the requirement to print the retail sale price on the bags supplied to APSHCL, aligning with the previous decision and rejecting the Revenue's challenge. Issue 4: Unjust Enrichment Consideration The question of unjust enrichment arose concerning the refund claim, with the Adjudicating Authority directed by the First Appellate Authority to assess this aspect before granting the refund. The Tribunal found no merit in the appellant's challenge to this direction, upholding the correctness of considering unjust enrichment before sanctioning the refund. In conclusion, the Tribunal rejected the appeals filed by both the Revenue and the assessee, affirming the decision based on the interpretation of the Notification, applicability of institutional consumer status, benefit extension, and the consideration of unjust enrichment. The judgment highlighted the importance of consistent application of legal principles and precedent in resolving disputes related to Central Excise Duty on cement sales.
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