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TMI Blog2009 (5) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... the said concessional rate of duty of Rs.400/- per MT, is not adhered to by the appellant and hence, they are liable to pay the differential duty. In the light of the decision of Grasim Industries Ltd. v. CCE, Jaipur-II,) held that- The Commissioner (Appeals) has rejected this claim of the appellant on the ground that construction is not an industry. This view is not correct. Construction is treated as an industry under the various statutes and it, in fact, is one of the biggest industries in any country. Appellant’s case is also covered by the Circular of the Board, dated 28-2-2002 inasmuch as the clearances were in bulk at contracted prices. The issue also remains covered in favour of the appellant by the decision of this Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant before him came to the conclusion that the clearance of cement in unit packages of 50 kg. in this case will not get the benefit of concessional rate of duty of Rs.400/- per MT. Coming to such a conclusion, he confirmed the differential duty by denying the concessional rate of duty, sought to impose penalty and interest. 3. The learned counsel appearing on behalf of the appellant submits that the issue is now squarely settled by the decision of the coordinate Bench of the Tribunal in the case of Grasim Industries Ltd. v. CCE, Jaipur-II as reported at 2004 (175) E.L.T. 779 (Tri.-Del.). It is his submission that the said decision was followed by the Tribunal in the case of M/s. Chettinad Cement Corporation Ltd. v. CCE, Trichy as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as the Central Excise Tariff Act), as are given in the corresponding entry in column (2) of the said Table, from so much of the duty of excise specified thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the specified in the corresponding entry in column (4) of the said Table and subject to the relevant conditions specified in the Annexure to this Notification, and the condition number of which is referred to in the corresponding entry in column (5) of the Table aforesaid". S. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... financial year, shall not exceed 3,00,000 tonnes; 2. 'retail sale price' means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be and the price so printed is the sole consideration for the sale: Provided that if the goods are cleared in wholesale packages containing a number of standard packages with retail sale price declared on them, then, such declared retail sale price shall be taken into consideration for determining the rate of duty under respective S. Nos. referred to above: Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Construction of Complex'. It is an admitted position that the Foreign Trade Policy of Government of India in the list of services as enumerated in Appendix-10 clearly indicated the following services as service industry. "3. Construction and related Engineering Services A. General Construction work for building B. General Construction work for Civil Engineering C. Installation and assembly work D. Building completion and finishing work E. Others" 5.3 We have no doubt in our mind that the construction industry is a service industry and the benefit claimed by the appellants of Sl. No. 1C will be applicable to the clearances made by them. We find strong force in the contentions raised by the learned counsel that the decision of the coo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular industry and thus, remained excluded under Rule 34 of the Packaged Commodities Rules. The Commissioner (Appeals) has rejected this claim of the appellant on the ground that construction is not an industry. This view is not correct. Construction is treated as an industry under the various statutes and it, in fact, is one of the biggest industries in any country. Appellant's case is also covered by the Circular of the Board, dated 28-2-2002 inasmuch as the clearances were in bulk at contracted prices. The issue also remains covered in favour of the appellant by the decision of this Tribunal in the case of Bharti Systel Ltd. v. CCE (supra). In these circumstances, the original duty payments were correctly made and no short levy r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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