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TMI Blog2014 (8) TMI 251X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. for the period May, 2007 to September, 2012 and duty demand of Rs. 11,35,12,755/- has been confirmed against M/s Ultra Tech Cement Ltd. for the period April, 2007 to January, 2013. As the issues involved in these appeals are common, they are taken up together for consideration and disposal. 2. The appellants are manufacturers of cement. There is a statutory requirement to affix MRP on packages sold to dealers for further sale to consumers in retail under the Legal Metrology (Packaged Commodities) Rules, 2011 (PC Rules in short). The appellants have complied the provisions of these Rules. The appellants have also cleared cement in 50kg bags to various bulk consumers like, builders/developers/industrial users, who use the cement for construction purpose or as raw material. Such buyers are covered by the definition of 'industrial consumer' or 'institutional consumer' under explanation to Rule 2A of PC Rules, 1977 and Rule 3(ii) of PC Rules, 2011. As per these provisions, commodity meant for industrial consumer or institutional consumers are not required to be affixed with MRP. Accordingly, the appellants have not declared the MRP on the cement bags and specifically have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered an identical issue in the case of Mysore Cements Ltd. - 2010 (259) ELT 30 (Kar), wherein also it was held that the concessional rate of duty under Sr. No. 1C of Notification No. 4/2006 was available in respect of cement cleared in 50kg bags to Govt. companies, construction companies, industrial/institutional consumers. It is further submitted that in other Central Excise Commissionerates such as Bhavnagar, Jaipur and Belgaum, in respect of the present appellants as also in respect of other similarly placed manufacturers such as Shree Cement Ltd., Beawar, M/s J.K. Cement Ltd., Mangrol, M/s Rajashree Cement, Kalkhed, M/s Vasavdatta Cement, Selam and Aditya Cement (a unit of Grasim Industries Ltd.), Shambhurpura, the jurisdictional Commissioners have decided the matter in favour of the appellant and dropped the duty demands by extending the benefit of Notification No. 4/2006. These orders have also been accepted in review by the Committee of Chief Commissioners. In these circumstances, it is prayed that the appeals be allowed. 4. The learned Commissioner (AR) and Addl. Commissioner (AR) appearing for the Revenue, on the other hand, submits that the decision of the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; i) "Institutional consumer" means the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals or any other service institutions who buy packaged commodities directly from the manufacturer for use by that institution. ii) "Industrial Consumer" means the industrial consumer who buys packaged commodities directly from the manufacturer for use by that industry." 5.2 From the above, it can be seen that packages of commodities containing a quantity of more than 25 kg or 25 litre excluding cement and fertilizers sold in bags upto 50 kg and packaged commodity meant the industrial or institutional consumer are excluded from the provisions of the said Rules. In other words, the Rules exclude two categories - the first category is packaged commodity containing a quantity of more than 25 kg or 25 litre and cement and fertilizer bags containing more than 50 kg. The second category is packaged commodity meant for industrial or institutional consumer. As regards the second category there is no restriction with respect to the quantity of the goods contained in the package. There is a 'semi colon' between the two clauses. This would c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding Rs. 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding Rs. 3800; (ii) of retail sale price exceeding Rs. 190 per 50 kg bag but not exceeding Rs. 250 per 50 kg bag or of per tonne equivalent retail sale price exceeding Rs. 3800 but not exceeding Rs. 5000; [Rs. 350 per tone] [12% of retail sale price] 1B. 2523 29 All goods, manufactured in a mini cement plant, other than those cleared in packaged form; Rs. 250 per tonne 1C. 2523 29 All goods, whether or not manufactured in a mini cement plant, not covered in S. No. 1B, other than those cleared in packaged form; Explanation - For the purpose of S. Nos. 1, 1A, 1B and 1C, - 1. "mini cement plant" means (i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 3,00,000 tonnes; 2. "retail sale p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the First Schedule Description of excisable goods Rate (1) (2) (3) (4) 1[1A 2523 29 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; (ii) of retail sale price exceeding Rs. 190 per 50 kg bag or of per tonne equivalent retail sale price exceeding Rs. 3800. [Rs. 230 per tone] [8% or retail sale price] 1B. 2523 29 All goods, manufactured in a mini cement plant, other than those cleared in packaged form; Rs. 170 per tonne 1C. 2523 29 All goods, whether or not manufactured in a mini cement plant, not covered in S. No. 1B, other than those cleared in packaged form; Explanation - For the purposes of S. Nos. 1, 1A, 1B and 1C, - 1. "mini cement plant" means (i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii) a factory using rotary kiln, with installed capacity not e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... higher] From a reading of the Notifications, especially the third proviso to entry at Sl. No. IC, it is clear that if the declaration of retail price is not required to be made in terms of PC Rules, then such goods are deemed as cleared in 'other than packaged form' and the rate of duty prescribed under Sl. No. IC would apply. The position is the same in respect of Notification No. 12/2012 also. 5.6 In the Grasim Industries case (supra), this issue was specifically examined by this Tribunal and it was held as follows:- "As rightly pointed out by the learned Counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Board's clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee's case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to 'industrial/institutional consumers as defined un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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