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TMI Blog2017 (12) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the assessee and also manner of calculation of the net duty liability - The assessee in particular, is aggrieved that adjudicating authority while calculating the duty liability has taken the cumulative total of duty liability calculated at ₹ 400/- per MT and also had calculated at 14% advalorem - The department has also put forth its grievance that the impugned order has wrongly extended concessional rate of duty notwithstanding clear guidelines of the Board vide circular dt. 28.2.2002; that duty concession has been wrongly extended in respect of clearances of cement in package form to industrial / institutional buyers and in respect of cement packed only in 50 kg bags. Ends of justice would be best served by remanding the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dt. 27.01.2017 informed the Department that their Board of Directors have passed a resolution to revise the installed capacity of the unit to 600 MT per day instead of 1200 MT per day; that resolution was also passed to maintain the production of cement less than 2,90,000 MT per annum and also clearance of cement less than 3,00,000 MT per annum. Accordingly, they requested the Asst. Commissioner to accord approval for availing concessional rate of duty as envisaged in Notification No.4/2006-CE dt. 1.3.2006 as amended. 2. It appeared to the department that assessee was not eligible for benefit of exemption notification as their installed capacity was not reduced. Department also held a view that assessee could not avail benefit under No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milnadu Government and is owned by the asessee. Further the brand name used does not belong to any other person to deny the concession. (iii) For the cement manufactured out of clinkers procured from outside they would not be eligible for the concession under the said Notification (No.04/2006 dated 01.03.2006) (iv) All clearances of cement whether manufactured out of won clinkers or out of clinkers sourced from outside to their sister concern would attract a duty of 14% advalorem which is higher than ₹ 400/MT in terms of Rule 4 of Central Excise Valuation Rules, 200 based on the value adopted in respect of clearance to unrelated buyers. (v) Cements cleared without RSP in bags of 50 kgs to other industrial consumers are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of ₹ 1,27,18,525/-, namely ₹ 8,86,69,050 + ₹ 38,49,475 for both notices, whereas the duty confirmed in the impugned order is ₹ 1,58,95,397/-. (iii) In this background, the penalty of ₹ 75 lakhs imposed on the appellant is also very much harsh. (iv) Assessee is a Tamilnadu Government owned company. They had no intention to evade payment of duty. In the case of Markfed Refined Oil Allied Industries Vs Commissioner reported in 2008 (229) ELT 557 (Tri.-Del.), the Tribunal had held that, in the absence of any material showing any positive intention on the part of the assessee which is a Government undertaking, to evade duty or fraud collusion etc., imposition of penalty was not justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 350/MT, by wrongly availing exemption under Notification No.04/2006-CE dated 01.302.006. The exemption under the above Notification appears to be not available to the assessee in view of the fact that the cement sold by the assessee was packed in 50 kg bags without affixing RSP. (ii) The third proviso to the Explanation 2 of the notification allows concessional rate of duty of ₹ 400/MT only when retail sale price is not required to be declared on the packages under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. But in the instant case, the cement is packed only in 50 kg bags which is not exempted in terms of the clause (a) of Rule 2A of Chapter II of the said Rules, and as such these clearances are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Central Excise, Trichy (Ref. CA. No.D22236/2009). The decision in the above appeal is pending. 7. Heard both sides and have gone through the facts. 8. Both in the assessee s appeals and department s appeals, grievances have been put forth concerning the eligibility of concessional rates of duty to various clearances effected by the assessee and also manner of calculation of the net duty liability. The assessee in particular, is aggrieved that adjudicating authority while calculating the duty liability has taken the cumulative total of duty liability calculated at ₹ 400/- per MT and also had calculated at 14% advalorem. As per the notification, only the higher of these two rates should have been adopted. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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