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TMI Blog2020 (6) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... d thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form. In other words, if the retail sale price is not required to be declared and hence also not declared the goods shall be treated as if they are cleared in other than packaged form and charged to duty accordingly. Such cases are covered by Sl No. 1C of the exemption notification. Such cases are covered by Sl No. 1C of the exemption notification. In the case of Rain Commodities Ltd Vs CCE Tirupathi [ 2011 (1) TMI 490 - CESTAT, BANGALORE ] where the cement was supplied to institutional buyers it has been held that Sl No 1A and 1B of the notification is not available to the appellant as in that case, clearance of the product was in bulk form which was not disputed. Time Limitation - HELD THAT:- The demand is also time barred and no evidence of fraud, or collision or wilful misstatement or suppression of facts with an intent to evade payment of duty has been brought on record. It was only a case of the appellant s claim Vs the Revenue s claim. In such a case, once the ER-1 returns are filed, it would be reasonable to expect the Revenue officers to assess them and in case of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared, during the relevant period, cement to M/s Andhra Pradesh Housing Corporation Ltd (APHCL) as well as for their own use in 50 kg bags declaring a retail sale price of less than ₹ 190/- per bag. They claimed the benefit of exemption Notification No. 4/2007-CE dated 01.03.2007 (Sl No. 1A) which was denied by the impugned order. Hence the demand. Before we proceed further, it would be profitable to examine the said notification. The relevant portion of this Notification is as follows: (1) (2) (3) (4) 1 2523.29 All goods, manufactured in a mini cement plant and cleared in packaged form- (i) of retail sale price not exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3800; ₹ 220 per tonne (ii) of retail sale price exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price exceeding ₹ 3800; ₹ 370 per tonne 1A 2523.29 All goods, whether or not manufactured in a mini cement plant, not covered in S.No.1 and cleared in packaged form of retail sale price not exceeding ₹ 190 per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3800; 1B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is not applicable to the present case as the appellant is not a mini cement plant. The appellant claimed the benefit of Sl No.1A which is applicable for "all goods whether or not manufactured in mini cement plant, not covered by Sl No. 1 and cleared in packaged form of retail sale price not exceeding ₹ 190/- per 50 kg bag or of per tonne equivalent retail sale price not exceeding ₹ 3,800/-. The requirement for availing the benefit of this entry are: a) That the goods are not covered by Sl No. 1 which is not in dispute. b) The goods must be cleared in packaged form which is not in dispute. c) The goods must be of retail sale price not exceeding ₹ 190/- per 50Kg bag and it is not in dispute that this price has been declared. What is in dispute is whether the appellant's goods are covered by the mischief of the third proviso to Sl No. 2 of the explanation to the exemption notification. 5. Sl No. 2 defines what constitutes the retail sale price and its third proviso says where the retail sale price of the goods are not required to be declared under Standards of Weights and Measures (Packaged Commodities) Rules 1977 and thus not declared, the duty shall be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the judgement in the case of Rain Commodities (supra) only based on the specific finding that the goods were cleared in bulk and denied the benefit of exemption notification Sl No 1A and allowed only the benefit of exemption at sl No 1C. 9. Learned counsel for the appellant submits that in their case, there is no dispute that the goods were cleared in 50Kg bags and this fact has been recorded. Therefore, the ratio of the judgement of Rain Commodities where the cement was cleared in bulk should not apply to them. On the other hand, Sagar Cements had also cleared the cement for supply to the some buyers namely APHCL in bags and therefore that ratio should apply to their case. He, further, submits that there is no infirmity in fixing the price as the price has been fixed as per the specific agreement entered in to with APHCL. Therefore, they are entitled to the benefit of exemption notification at Sl No 1A and the entire demand needs to be set aside on merits itself along with interest and penalties. 10. He also argues that there is no element of fraud or collision or wilful misstatement or suppression of facts evident in records. In fact, they were of the view and are still of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... planation to the Notification which reads as follows:- "provided that if the goods are cleared in wholesale packages containing a number of standard packages, with retail sale price declared on them, then, such declared retail sale price shall be taken into consideration for determining the rate of activity under respective Sl No. 8 referred to above." Evidently the cement was cleared in large quantities but packed in 50kg bags to institutional buyers after declaring the retail sale price on each bag even though they were not required to so declare under the Standards of Weights and Measures (Packaged Commodities) Rules 1977. Thus the present case is, in our view, similar to the case of Sagar Cements Ltd (supra) which attained finality at the level of Hon'ble Supreme Court except to the extent that there was no letter from the Controller of Legal Metrology requiring the assessee to declare the retail sale price. Nevertheless, the third Proviso under which benefit of this exemption notification Sl No. 1A sought to be denied requires not only that the retail sale price is not required to be declared but also that it has not been declared but it has been declared in this case. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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