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TMI Blog2016 (10) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacture of cement liable to Central Excise duty. They were clearing the cement in unpacked form and also in packages of 50 kgs. to various bulk customers like manufacturers, builders, contractors, educational institutions, societies and hospitals etc. During the period March, 2007 to December, 2007 they have cleared the said cement with concessional rate of duty in terms of Sl. No. 1C of Notification No. 4/2006-CE dated 01.03.2006. The condition for such concessional rate is that such clearances are not be covered under the provisions of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and the cement is cleared without declaration of RSP. The assessee-appellant cleared cement to various industrial and institutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual or a group of individuals or any other consumer. Ld. Counsel emphasised that in order to qualify as a retail sale in terms of this definition the sale should be made through a intermediary namely a retail sale agency or any other instrumentality. Hence, it is the case of the assessee-appellant that when they sell directly to a consumer for his own use / consumption, the same does not qualify as a retail sale and hence the provisions of Packaged Commodities Rules are not applicable. Admittedly, for cement sold by the assessee-appellant directly to the consumers on contracted price no RSP was marked on the packages and they bore endorsement of not for sale . We find the claim raised by the assessee- appellant on this has not been dealt w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in terms of Packaged Commodities Rules, 1977 the goods should be treated as if cleared in other then packaged form and the concessional rate of duty in terms of Entry 1C should be eligible. The Tribunal was deciding the issue of RSP and the concession under the said Notification for exported cement. 4. We find that the original authority found that hospitals, co-operative societies, temples cannot be considered under the category of institutional or industrial consumers. We find the reasoning given by the original authority that schools, educational institutions and hospitals are not service industry in terms of Rule 2A of the Packaged Commodities Rules, 1977 is not tenable. The institutional consumer means those consumers who buy cement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the reliance placed by the original authority on the decision of the Tribunal in Grasim Industries (supra) is not proper as the department has filed civil appeal before the Hon'ble Supreme Court against the said order. Hence, the Revenue submitted that the decision of the original authority based on such Tribunal s decision is pre-mature and improper. We find that the Revenue is in fact attempting to discard the Board circular, in favour of clarification issued by Metrology department. In fact, it was stated that Board clarification dated 12.06.2008 is only addressed to Chief Commissioner, Jaipur and Mysore and should not be given effect to other places. We find such reasoning as absurd. Further, the Revenue has not placed on record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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