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TMI Blog2017 (5) TMI 1191X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/R 2A of SWM Rules, 1977 and such goods are eligible for the benefit of N/N. 4/2006-CE - appeal allowed - decided in favor of assessee. - E/237/2010-DB, E/900, 981, 982, 983, 984, 985, 986, 987, 988, 989, 990, 991, 992, 993 And 994/2011-DB - A/10962-10977/2017 - Dated:- 15-5-2017 - Dr. D.M. Misra, Member (Judicial) And Mr. Ashok K. Arya, Member (Technical) For Assessees : Shri R. Nambirajan, Shri Anand Nainawati - Advocates For Revenue : Shri Sameer Chitkara, A.R. (Addl. Commissioner) ORDER Per: Ashok K. Arya 1. M/s Sanghi Industries Ltd (SIL) has filed two appeals (E/237/2010 and E/900/2011). Appeal No.E/237/2010 is filed against OIO No.23-29/Commr/2009, dt.06.01.2009 and appeal No.E/900/2011 is filed against OIO No.37-50/Commr/2011, dt.31.03.2011, both passed by Commissioner of C.Ex. S.Tax, Rajkot. 1.1 Revenue has also filed 14 Cross Appeals (No.E/981-994/2011) against OIO No.37-50/Commr/2011, dt.31.03.2011. 1.2 As the subject matter in all these appeal cases is common, therefore these are being decided by this common order. 2. The brief facts are that:- i) M/s SIL, an assessee-manufacturer inter alia, is engaged in the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers had consumed the cement cleared by the appellants for civil construction activities or residential complexes or for industrial building construction for themselves. c) that M/s SIL have violated the statutory provisions of affixing Retail Sale Price (RSP) on their packaged commodity while clearing cement with intent to pocket undue profit. d) that M/s SIL wrongly cleared cement on payment of concessional rate of duty in the guise of buyers being institutional consumers or industrial consumers. e) that M/s SIL have intentionally and deliberately misstated the facts by considering their bulk buyers as institutional consumers which is not applicable in the present facts and circumstances of the case and wrongly availed the benefit of concessional rate of duty. vii) In view of the above, the Department issued a total of 21 Show Cause Notices during March 2007 to January 2010 and demanded differential Central Excise duty by denying the benefit of concessional rate of duty as provided in Sr.No.1C of Notification No.4/2006-CE as amended during the relevant period. viii) Seven Show Cause Notices issued for the period March 2007 to November 2008 were adjudicated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of Rule 2A(b) of the Standards of Weights Measures (Packaged Commodities) Rules, 1977, the goods were cleared to the buyers which are covered under the category of industrial/institutional buyers mentioned at (a) and (b) of the explanation to Rule 2A of SWM Rules. The goods were cleared by paying duty @ ₹ 400 PMT for every consignment meant for institutional and 'industrial' buyers. 4.1 Revenue's stand is that subject supplies/sales, though declared as Not for Resale are not covered under Rule 2A of SWM Rules, therefore, concessional rate of duty as per Notification No.4/2006-CE Sr.No.1(b) or 1(c) will not be applicable to sales made to/for builders, developers, contractors and construction firms, manufacturers of finished goods, captive consumption. 4.2 The Department vide the impugned Orders-in-original has denied the benefit of Notification No.4/2006-CE under its Sr.No.1(C) for the sales made to following 3 categories of bulk buyers:- i) Social/Educational, religious and charitable organizations ii) Infrastructural development projects iii) Government bodies i) Social/Educational, religious and charitable organizations:- These ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary Pvt. Ltd. - 2010 (259) ELT 5 (SC). The CESTAT in the case of Ambuja Cements Ltd Vs CCE Raipur - 2017 (1) TMI 1130 (supra) observes as follows:- 3. The brief facts are that the appellant is engaged in the manufacture of Cement and Clinker falling under Chapter Heading 252329 and was clearing the same, inter alia, to various buyers in 50 kg bags. Such buyers included manufacturer of excisable items, construction service providers, Government Department and Charitable institutions/trusts. Some of the cement was also used for self-consumption and for quality control. During the period of dispute, Appellant had cleared 62673.633 MT cement by discharging duty liability at the concessional rate f ₹ 400/- PMT as prescribed under Sl.No.1C of Notification No.4/2006-CE (as amended). Relevant part of the Notification is as follows:- S.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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e covered by the expression 'like' and 'any other service institution' similar to those specifically mentioned. The institutional consumers mentioned are transportation, hotels and hospitals which do not form any particular class. Therefore, the principle of ejusdem generies will not apply. Any service institution would qualify as institutional consumers. 5.5 . 5.6 In the Grasim Industries case (supra) , this issue was specifically examined by this Tribunal 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 C.B.E. C., which is to the effect that no RSP requires to be printed on the goods sold to industrial/institutional consumers as defined under the rules framed under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .13.10.2014 held that when there is no requirement to declaration the RSP on the package in terms of Packaged Commodities Rules, 1977 the goods should be treated as if cleared in other than 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 those 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 directly from the manufacturers for service industry like transportation including airway, railway, hotel or any other similar service industry. We find that educational institutions and hospitals are directly buying cement from the assessee-appellant and rightly eligible for concessional rate of duty as service institution. Even if it is considered that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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