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TMI Blog2017 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Grasim Industries Ltd. [2008 (10) TMI 462 - CESTAT, CHENNAI], where it was held that such goods would be covered under Sl. No. 1B or 1C of N/N. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended - refund allowed - appeal dismissed - decided against Revenue. - E/66/2010 - Final Order No.42270/2017 - Dated:- 4-10-2017 - Ms. Sulekha Beevi C.S., Member (Judicial) And Shri Madhu Mohan Damodhar, Member (Technical) Shri S. Govindarajan, AC (AR) for the Appellant Ms.J. Ragini, Advocate for the Respondent ORDER Per Bench Brief facts of the case are that the respondents are manufacturers of cement. They filed six refund claims for the period from May 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands squarely covered by the said decision. She also submitted that the Mumbai Bench of the Tribunal in the case of Heldelberg Cement (India) Ltd. Vs.CCE, Nagpur - 2015 (315) ELT 53 has also taken a similar view. 4. Heard both sides and perused the records. 5. There is no dispute that the cement was cleared by the respondents to M/s. Tamilnadu Electricity Board for their own use and not for resale. So also the quantity was not more than 50 kilograms. The issue whether such clearance to institutions/ industrial consumers, the benefit of exemption under Sl. No. 1C of Notification No.4/2006-CE would be eligible has been analysed and discussed in the case of Grasim Industries Ltd. (supra). The Mumbai Bench of the Tribunal in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period from 17-3-2012 onwards. As per these entries in the notifications, cement bags of 50 kg cleared to industrial or institutional consumers, which is not subject to fixation of MRP, is eligible for concessional rate of duty as provided therein. However, the department was of the view that the appellants are not eligible for the aforesaid exemption benefit inasmuch as the sale to buyers like, builders/developers etc. cannot be considered as sale to industrial/institutional consumer and, therefore, the appellants are liable to discharge excise duty at the tariff rate. Consequently, differential duty liability has arisen and the duty demands were confirmed along with interest and also by imposing penalties. xxxxx xxxxxx xxxxxxx xxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Standards of Weights and Measures Act and that such goods would be covered under SI. No. 1B or 1C of Notification No. 4/2006-C.E., by virtue of the Second Proviso to the Explanation to SI. No. 1C of the Notification as amended. The Board's clarification squarely covers the case in favour of the assessee. Further, in the case of Mysore Cement Ltd. - 2010 (249) E.L.T. 398, this Tribunal held that construction industry is a service industry and benefit claimed by the appellants under the aforesaid Notifications shall be admissible. The said decision was upheld ..... X X X X Extracts X X X X X X X X Extracts X X X X
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