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TMI Blog2016 (10) TMI 906X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in 25 kg. PP bags to M/s. NCC Maytas (JV), Pocharam at the rate of Rs. 175/- per bag as per the Purchase Order. The appellants had paid excise duty on the transaction value in terms of Section 4 of the Central Excise Act, 1944(CEA for short) on the goods sold in bulk for captive consumption by the construction industry. The appellants vide letter No.ACPC/3983/2003-04 dt. 30/12/2003 informed the Assistant Commissioner of Central Excise, Nalgonda Division that they had received Purchase Order for supply of Superfine Spray Plaster in bulk from NCC-Maytas for their consumption in construction and that they intend to supply the same packed in 25KG bags, on payment of excise duty under Section 4 of the CEA on the transaction value of Rs. 175/- per bag. However, a show-cause notice dated 25/01/2005 was issued to appellant proposing that the goods have to be assessed on the basis of Retail Sale Price in terms of Section 4A and not on the basis of transaction value in terms of Section 4 of the CEA, 1944. Adjudicating authority vide Order-in-Original No.41/2005 dt. 27/09/2005 accepted the contention that the goods were to be assessed in terms of Section 4; however, the said authority disa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erial or servicing of construction industry. The lower authorities have erred in not understanding that use of Surface Coating Material in construction industry is use of the said material as raw material. c. Even otherwise, supply of Surface Coating Material to the construction industry for their captive use amounts to supply for the purpose of servicing the said construction industry. Therefore, supply of Surface Coating Materials to NCC-Maytas for their own consumption in construction industry was exempt under Rule 34(1 )(a) of the Standards of Weights and Measures (Package Commodities) Rules, 1977, from declaration of Retail Sale Price among other declarations as required. Therefore, the appellants were not required to declare the Retail Sale Price on the goods sold to the Construction Industry and were not liable to assessment under Section 4A of the Central Excise Act, 1944. The payment of duty on the transaction value in terms of the CEA, 1944 was correct in law. 3.2. The learned Advocate further submitted that his arguments are supported by the judgments laid by the Hon'ble Apex Court in Jayanthi Food Processing (P) Ltd. Vs. CCE, Rajasthan [2007 (215) ELT 327 (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in which goods are supplied for purpose of supplying any industry,etc to be eligible for exemption from affixation of MRP/Section 4A valuation. It is seen that the Apex Court has taken into consideration Circulars dated 28.02.2002 as well as the further clarificatory Circular dated 17.01.2007 relied upon by Ld. AR. The said Rule 34, though amended w.e.f. 17.07.2006 (new Rule 2A), has only further enlarged the scope of institutional consumer and industrial consumer for the purposes of exemption from affixing the MRP. 7. The decision laid in the case of ITEL Industries which is relied by department, is not applicable to the case on hand as the facts are distinguishable. The case involved bulk supply of telephone instruments with MRP indicated upon them to DOT/MTNL who lent the same to subscribers while retaining their ownership. It is not the case that such instruments were being supplied as raw materials or for the purpose of servicing any industry. The facts of the case in Liberty Shoes (supra) is also placed similarly. In fact the Liberty Shoes judgment draws upon the ratio of Jayanthi Food Processing case to distinguish that such supply of foot wear to in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been specially packed for the exclusive use of any industry as a raw material or for the purpose of "servicing any industry, mine or quarry". Learned Counsel points out that the "package" which is sold by the assessee mentions that it is specially packed for the exclusive use of the catering industry. Learned Counsel further argues that such "package" was for the purposes of "servicing the hotel industry or catering industry" as the case may be. Learned Counsel is undoubtedly right when he seeks to rely on Rule 34 which provides for exemption of the "packages" which are specially packed for the exclusive use of any industry for the purposes of "servicing that industry". Shri Subba Rao supported the view expressed by the Tribunal that the words "servicing any industry" could not cover the present case and he further suggested that ice-cream cannot be a "raw material" for any industry. He is undoubtedly right that the ice-cream cannot be termed as "raw material" for any industry. However, the words "or for the purposes of servicing any industry" are broad enough to include the transaction in question, i.e., the sale of a pack of ice-cream to the retail industry. Hotel does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is interesting to note that the issue whether construction industry is a service industry was analysed by the Hon'ble High Court of Karnataka in the case of CCE, Bangalore Vs. Mysore Cements Ltd. [2010 (259) ELT 30 (Kar)] The relevant portion of the judgment is extracted below :- 2. ... ... ... The Tribunal relying on the Notification as well as the decisions of the co-ordinate Bench in the case of M/s. Grasim Industries Limited v. CCE, Jaipur reported in 2004 (175) E.L.T. 779 (Tri.-Del), which was followed by the Tribunal in the case of M/s. Chettinal Cement Corporation Limited v. CCE, Trichy reported in 2009-TIOL-139-CESTAT-MADRAS, where it was held that, Construction is treated as an industry under the various statutes and it in feet, is one of the biggest industries in any Country, the construction industry is a service industry and therefore, the assessee is entitled to the concessional rate of excise duty and therefore, it set aside the order passed by the adjudicating authority and held that, the assessee is entitled to the benefit of the Notification. Aggrieved by the said order, the revenue is in appeal. 3. The learned counsel for the appellant assailing the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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