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TMI Blog2013 (1) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are not of mini cement plant. During the period of dispute is May 2009 to March 2010, the appellant manufactured and cleared the grey portland cement produced by him on payment of excise duty beyond the limit of SSI exemption after claiming abatement of 30% on MRP in view of the Notification No. 14/2008-C.E. (N.T.), dated 1st March, 2008. 3. The department being of the view that the appellant was wrongly claiming abatement, issued a show cause notice raising duty demand on differential price and the penalty and it was the stand of the department that the appellant was required to pay 10% of the retail sale price in view of Notification No. 4/2006-C.E. (N.T.), dated 1st March, 2006. The Jurisdictional Additional Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn our attention to the order-in-original wherein the claim of the appellant for abatement was accepted. It is submitted otherwise also non-applicability of Notification No. 14/2008-C.E. (N.T.) was not an issue raised in the show cause notice as such finding of the Commissioner (Appeals) is not sustainable being beyond the scope of show cause notice issued to the appellant. Thus, it is contended that appellant has a strong prima facie case for waiver of the pre-deposit of duty demand, interest and penalty. 5. Refuting the argument, Shri I. Baig, has drawn our attention to the language of the abatement Notification No. 14/2008-C.E. (N.T.) and submitted that the abatement by virtue of this notification is available only in relation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not artificially coloured or whether or not with rapid hardening properties. 9. In the instant case, admittedly the product manufactured and cleared by the appellant is not white cement but grey portland cement, therefore, in our prima facie view, the Commissioner (Appeals) has rightly held that the abatement is not entitled to abatement under notification and has rightly confirmed the duty. 10. Coming to the contention of the appellant that the impugned order is beyond the scope of show cause notice. In order to appreciate this contention, it would be useful to have a look on Paras 6 and 8 of the show cause notices served on the appellant which are reproduced thus :- "6. And whereas, on perusal of above-mentioned 'retail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 All goods, whether or not manufactured in a mini cement plant, not covered in S.No. 1 and cleared in packaged form, - (i) of retail sale price not exceeding Rs. 190 per 50 kg. bag or of per tonne equivalent retail sale price not exceeding Rs. 3800; Rs. 290 per tonne (ii) of retail sale price exceeding Rs. 190 per 50 kg. bag or of per tonne equivalent retail sale price exceeding Rs. 3800 10% of retail sale price For the period between 7-12-2008 and 26-2-2010, the effective rate of duty was as under : Sl. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. (1) (2) (3) (4) (5) 1A. 2523 29 All goods, whether or not manufac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise duty was paid by the party) are covered by Serial No. 1A of the Notification No. 4/2006-C.E., dated 1-3-2006, as amended. However for the period between 1-4-2008 to 22-9-2008, 'retail sale price' has not been mentioned in the aforesaid RSP details, against some of the quantities cleared during the said period. Either these clearances were made in other than packaged form or these clearances were exempted from the declaration of 'retail sale price' on the package, under the provisions of the Standards of Weights and Measures Act, 1976 or the rules made thereunder. Such clearances are either covered by the effective rate of duty of excise prescribed under Serial No. 1C of the Notification No. 4/2006-C.E., dated 1-3-2006, as am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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