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TMI Blog2017 (3) TMI 1089X X X X Extracts X X X X X X X X Extracts X X X X ..... Original 42 to 44/2010 dated 09.12.2010 confirms the demands of Central Excise duty of Rs. 2,30,85,909/-, Rs. 2,16,49,755/- and Rs. 5,15,33,153/- along with interest for recovery on cement cleared for export to Nepal during the cumulative period of March, 2008 to November, 2009 against M/s. Jaypee Rewa Plant under Section11A of the Central Excise Act, 1944. 1.2 The Order-in-Original No. 39-41 confirms the demand of Central Excise duty along with interest for recovery under Section 11A of Central Excise Act, 1944 against other appellant namely M/s. Jaypee Bela Plant. 2. The appellants have been represented by ld. Advocate Shri Rahul Tangrick and Revenue has been represented by the ld. AR, Shri Amresh Jain. 3. The ld. Advocate for both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there under. However Section 2(b) of the Standards of Weights and Measures Act, 1997 defines "commodity in packaged form" which means commodity packaged, whether in any bottle, tin, wrapper or otherwise, in units suitable for sale, whether wholesale or retail." Rule 2(l) of Standards of Weight and Measures (Packaged Commodities) Rules, 1977 [PC Rules in short] defines "pre-packed commodities" means a commodity, which without the purchasers being present, is placed in a package of whatever nature, weather sealed or opened, so that the commodity therein has a pre-determined value and includes those commodities which could be taken out of package for testing or examining or inspecting the commodity. vi. Explanation 2 to the notification no. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sr. No. 1C of Notification no. 4/2006-CE dated 1.3.3006 cannot be denied to the appellant: a. Sr. No. 1C & relevant portion of explanation to the notification no. 4/2006-CE dated 1.3.2006 are being reproduced as under: 1C 252329 All goods, whether or not manufactured in a mini cement plant, not covered in S.No. 1B, other than those cleared in packaged form; 14% or Rs. 400 per tonne, whichever is higher - Explanation.- For the purposes of S. Nos. 1, 1A, 1B and 1C,- 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, omission payable to dealers, and all charges towards advertisement, del ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim the benefit against serial No. 1A. Alternatively, the appellants plead that the benefit of Serial No. 1C of the Notification No. 4/2006-CE (supra) is available to them. Twin conditions which need to be satisfied to claim benefit of Notification Serial No. 1C are that (i) Goods not covered in SR. No. 1B (ii) Goods must be other than those cleared in packaged form. The appellants claim that in no case they are liable to pay duty as per tariff rate. 6.1 On the other hand, the Revenue claims that the appellants are manufacturing the goods both for the Indian market as well as for export to Nepal. For the Indian market, the appellants clear their manufacture of Cement in package form of 50 Kg bags in interstate trade after paying duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al. 6.3 From the above discussion, it is clear that Cement Packages exported to Nepal are not covered by the provisions of Standards of Weights and Measures Act, 1976 and the Rules made thereunder.In this regard, the adjudicating authority in both the impugned orders inter alia observe as under: "16...it is now clear that the export goods do not attract the provisions of the Standards of Weights and Measures Act, 1976 or rules made there-under. Thus, when the provisions of the Standards of Weights and Measures Act are not applicable to export goods, the benefit of exemption granted at S.No. 1 to 1C of Notification No. 4/2006-CE dated 01.03.2006 would also not be applicable to them because it is applicable only to those cases where the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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