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TMI Blog2017 (12) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... a good case in their favor - appeal allowed - decided in favor of appellant. - E/30797 & 31075/2016 - A/31823-31824/2017 - Dated:- 15-11-2017 - Mr. M. V. Ravindran., Member (Judicial) And Mr. Madhu Mohan Damodhar, Member (Technical) Sh. Muthu Venkataraman, Advocate for the Appellant Sh. P.S. Ghosh, (AR) for the Respondent ORDER [Order Per: M. V. Ravindran] These two appeals are taken up for disposal by the common order as the issue involved being same and pertains to the same assessee/appellant. These appeals are directed against Order-in-Original No.GUN-EXCUS-000-COM-012-15-16-CE. Dated 14.01.2016. 2. The appellants herein are manufacturers of cement and clinker registered with central excise department and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds and submits that the issue or short point that is involved in this appeal is whether appellants had supplied the goods through institutional / industrial consumers, who are contractors in the construction industry and manufacturers, who have procured the cement for construction for their factories. He submits that the supplies made by the appellant for the consumers has to be considered as supplies to industrial / institutional consumers. He would submit that identical issue came up before the Bench of the Tribunal in Chennai in Appeal No. E/126/2009 of ACC Limited which was decided by the Tribunal by Final Order No. 41783-2017 as reported at 2017-VIL-747-CHE-CE and produces a copy of the same. He would read extensively from the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t builders, developers, construction companies, real estate residential construction, commercial construction and claims these supplies were made to industrial / institutional consumers; covered by Rule 3 of Legal Metrology Act(Packaged Commodities) 2011. The adjudicating authority in paragraph No.25 to 33 has come to conclusion that supplies made by the appellant to these type of purchasers cannot be considered as supplies to industrial institutional consumers and having not declared RSP which is required to the done confirmed the differential duty with interest and imposed penalties. 6. Basically, the dispute between the appellant and the Revenue is whether the supplies made to the category of purchasers as indicated herein above, are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of this Chapter shall not apply to,- (a) Packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags up to 50 kg; and (b) Packaged commodities meant for industrial consumers or institutional consumers. Explanation :- For the purpose of this rule,- (i) Institutional consumer means the institutional consumer like transportation, Airways, Railways, Hotels, Hospitals 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of cement for manufacture of RMC would definitely come within the category of sale to industrial consumers. As regards builders/developers etc., construction activity is a service activity as is well understood and there is also a Service Tax levy on construction activity. Therefore, sale to such builders/developers would certainly qualify as sale to institutional consumers. The argument of the Revenue that since the sale is not to consumers like transportation, airways, railways, hotels, hospitals and any other service institution and since the builders/developers have not been specifically included and, therefore, such sale would not qualify as sale to institutional consumer is bereft of logic because only certain service providers have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal filed by the ACC Ltd., as recorded in paragraph 4.7. 9. In view of the judicial pronouncements, on the issue i.e. whether supplies made to the similarly placed customers as indicated in this case, are to be considered as supplies to industrial / institutional customers, we have no hesitation to hold that on merits appellant has a good case in their favour, accordingly we find that impugned orders are not sustainable and needs to be set aside and we do so. 10. Since on the merits of the case itself we have set aside the demands, recording any findings on various arguments put forth by both sides would be of an academic interest, hence we are not recording any findings on various arguments putforth. 11. In view of the foregoing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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