Custom, Excise & Service Tax Tribunal
Acc Ltd. vs Cce Nagpur on 24 August, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT No. I
APPEAL No. E/374/2010
(Arising out of Order-in-Appeal No. SR/299/NGP/2009 dated
26.11.2009 passed by Commissioner of Central Excise (Appeals),
Nagpur)
ACC Limited Appellant
Vs.
Commissioner of Central Excise, Nagpur Respondent
Appearance:
Shri Prasad Paranjape, Advocate, for appellant Shri M.R. Melvin, Superintendent (AR), for respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Hon'ble Mr. P. Anjani Kumar, Member (Technical) Date of Hearing: 24.8.2018 Date of Decision: 24.8.2018 ORDER No. A/87305/2018 Per: P. Anjani Kumar M/s ACC Limited (Chanda Cement Works), the appellants are engaged in the manufacture of cement falling under Chapter 25 of CETA, 1985. The appellants cleared packed cement from their factory for captive consumption availing concessional rate of duty as per entry 1C of Notification No.4/2007-CE dated 01.03.2007. Revenue contended that the benefit of the Notification cited above, for the reasons that the 2 E/374/2010 appellant is not a mini-cement plant; the clearance being for captive consumption no retail sale is involved and the clearances are in packaged form only. Revenue issued an SCN dated 2-4-2008 to the appellants, which was confirmed by OIO dated 30-8-2008. On an appeal filed by the appellants Commissioner (A) has upheld OIO vide order dated 26-11-2009. Hence this appeal.
2. The Ld. Counsel for the appellants submitted that the appellants have fulfilled the conditions and thus are eligible for the benefit of the Notification for the following reasons.
(i). As the goods are not manufactured by a mini cement plant, they are not covered under Entry 1B of the Notification.
(ii). The appellant fulfils the condition under Entry 1C of Notification No.4/2007-CE dated 01.03.2007.The appellant does not declare the RSP on the packaged cement, cleared for captive consumption, in terms of PC Rules. The third proviso to explanation 2 under Entry 1C of Notification No.4/2007-CE dated 01.03.2007 provides that where the RSP is not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 (PC Rules) and thus not declared, the duty shall be determined as in the case of goods cleared in other than
3 E/374/2010 packaged form though cleared in packaged form. By virtue of deeming fiction created by third proviso to explanation 2 under Entry 1C of said Notification, cement cleared by the appellants in packaged form falls within the ambit of said entry 1C of Notification No.4/2007-CE dated 01.03.2007. Therefore, the goods cleared by appellants are to be treated to be in other than packaged form.
2.1. CBEC vide circular 124/02/2008 CX-3 dated 12-6- 2008 clarified that where sale is not a retail sale as per PC Rules, such goods will be covered under Entry 1B or 1C of Notification No.4/2007-CE dated 01.03.2007 as amended.
2.2. He submitted that the issue is no longer Res Integra as it was decided squarely in their favour, as per the ratio of following cases.
(i). CCE Bangalore Vs Mysore Cements Ltd 2010(259) ELT 30 (Kar)
(ii). ACC Ltd Vs CCE, Coimbatore 2018(359) ELT 572 (Tri-Chennai)
(iii). Ambuja Cements Ltd Vs CCE, Raipur 2018(360) ELT 121(Tri-Del)
(iv). Grasim Industries Ltd(Unit-I) Vs CCE, Trichy 2009(328) ELT 655(Tri-Chennai) 4 E/374/2010 2.3. He further submitted that the demand is time barred. SCN was issued on 2-4-2208 covering a period 01.03.2o07 to 31-01-2008. The appellants have disclosed their intention to claim benefit vide letter dated 21-05-2007. As the demand itself is not maintainable, interest and penalty provisions do not apply.
3. The Ld. AR has reiterated the findings in OIO and OIA.
4. Heard both sides and perused the records of the case. The brief issue involved in the case is to see whether the appellants are eligible for the benefit of Notification No.4/2007-CE dated 01.03.2007 on the cement cleared by them for captive use. The Notification as far as the appellants claim is concerned reads as 1C 252329 All Goods, whether or Rs.400 -----
not manufactured in a per
mini cement plant, not Tonne
covered under Sl. No
1B, other than those
cleared in packaged
form.
We find that in order to be eligible for the benefit of Notification, the goods should
(i). fall under the Chapter Heading 5 E/374/2010
(ii). may or may not be manufactured in a mini cement plant.
(iii). not covered under 1B (applicable for mini cement plants) and
(iv).other than those cleared in a packaged form. A perusal at the appellant's activity, it is clear that the conditions (i) to (iii) as above are satisfied as the unit is not a mini cement plant. The only issue requires to be decided is whether such clearances can be treated as other than closed in packaged form. Third proviso to the Notification states as under:
Provided also that where the retail sail price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and not thus declared, the duty shall be determined as in the case of goods cleared in other than packaging form. In case of the impugned clearances, the appellants have cleared it for captive consumption and the packages are marked 'Not for retail sale/re-sale'. These facts are not disputed by Revenue. In terms of Standards of Weights and Measures (Packaged Commodities) Rules, 1977, the appellants are not required to declare RSP. Therefore, by virtue of the 3rd proviso they are to be assessed/ determined to duty as in the case of goods cleared in packaging form. Therefore, the impugned goods are
6 E/374/2010 required to be charged to duty in terms of 1C of the said Notification.
4.1. We find that the CBEC Circular has also clarified on the above lines. Tribunal in the case of ACC Ltd Vs CCE, Coimbatore (Supra) held that cement cleared for self-consumption cannot be considered as 'retail sales' under Rule 3(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Similar view was expressed in the other cases cited by the counsel for appellants. Therefore, we find that the appellants case is squarely covered by the circular cited above and the ratio of the decision in the cases cited. Therefore, we find that the impugned order is not maintainable under law.
5. In view of the above, we allow the appeal filed with consequential relief if any.
(Pronounced in court)
(S.K. Mohanty) (P. Anjani Kumar)
Member (Judicial) Member (Technical)
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