Custom, Excise & Service Tax Tribunal
Jaypee Rewa Plant vs Commissioner, Customs, Central ... on 13 May, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. - IV
Excise Appeal No. 52207 of 2021
[Arising out of Order-in-Original No. 02/COMMR/CEX/JBP/2021-22 dated
31.08.2021 passed by the Principal Commissioner of CGST, Central Excise &
Customs, Jabalpur, Madhya pradesh]
M/s. Jaypee Rewa Plant ...Appellant
(Unit of Jaiprakash Associates Limited),
Jaypee Nagar, Naubasta, Rewa,
M.P. - 486450
VERSUS
Commissioner of Customs,
Central Excise & CGST - Jabalpur ...Respondent
GST Bhawan, Mission Chowk, Napier Town, Jabalpur, Madhya Pradesh - 482001 WITH Excise Appeal No. 52210 of 2021 [Arising out of Order-in-Original No. 03/COMMR/CEX/JBP/2021-22 dated 31.08.2021 passed by the Principal Commissioner of CGST, Central Excise & Customs, Jabalpur, Madhya pradesh] M/s. Jaypee Bela Plant ...Appellant (Unit of Jaiprakash Associates Limited), Jaypee Puram, Rewa, M.P. - 486450 VERSUS Commissioner of Customs, Central Excise & CGST - Jabalpur ...Respondent GST Bhawan, Mission Chowk, Napier Town, Jabalpur, Madhya Pradesh - 482001 APPEARANCE:
Shri B.L. Narasimhan and Ms. Sukriti Das, Advocates for the Appellant Shri Ranjan Prakash, Authorized Representative for the Respondent CORAM:
HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL) HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) DATE OF HEARING: 14.01.2025 DATE OF DECISION: 13.05.2025 FINAL ORDER No. 50670-50671/2025 2 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 DR. RACHNA GUPTA Present order disposes of two appeals. The Show Cause Notices bearing No. 10/2013 and 11/2013 both dated 29.01.2013 and the order under challenge bearing No. 02/2021-22 and 03/2021-22 both dated 31.08.2021 decided the proposals in the Show Cause Notices. M/s Jaypee Rewa Plant (Unit of Jaiprakash Associates Limited) Jaypee Nagar Naubasta, Rewa-486450 (MP) and M/s Jaypee Bela Plant, Jaypee Puram, Rewa-486450 (here-in- after referred to as the Appellants) is registered with the Central Excise Department. The scrutiny of records of the appellants reveals that from 1.1.2008 to 28.2.2011, the Appellants had cleared Cement in two categories viz: -
(i) Trade and Non Trade Parties (Industrial/Institutional buyers): Dispatches from depot/dump are primarily made to Trade parties only. There is no sale through consignment agents. Dealers are supplied only in trade i.e. in MRP bags from both factory and depot/dumps.
(ii) To non-Trade sale: under SI No. 1C of the Notification No. 4/2007-CE dated 1.3.2007 as amended from time to time.
2. But it is observed that in some cases they are paying duty by availing benefit of exemption under Notification No. 4/2007 CE dated 1.3.2007, as amended from time to time under SI No. 1C in case of non-Trade sale whereas in similar cases they are paying 3 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 duty as per SI No. 1A of Notification No. 4/2007-CE dated 1.3.2007 as amended from time to time as suited in their interest.
3. It is alleged that appellants, in case of non-trade sale, have wrongly availed the benefit of Sr. No. 1A of the Notification and thus have short paid central excise duty, whereas they should have paid Central Excise duty under Sr. No. 1C of the said Notification for all non-trade sales.
4. Thus a show cause notice bearing no. 10/2013 and 11/2013 dated 29.01.2013 was served upon the appellants alleging that during the period 1.1.2008 to 28.2.2011, the appellant has short paid Central Excise duty of Rs. 3,17,41,635/- (BED-Rs. 30817121/- +EC Rs. 616342/- +SHE-Rs. 308171/-) cleared from factory as well as depot/dump as Non-Trade sales (Industrial / Institutional buyers) by wrongly paying Central Excise duty in terms of S. No. 1A of the Notification. Thus Central Excise duty amounting to Rs. 3,17,41,635/- was proposed to be recovered along with the proportionate interest and appropriate duties.
5. The said proposal is confirmed vide order-in-original (O-I-O) bearing no. 02/2021-22 and 03/2021-22 dated 31.08.2021. Being aggrieved, the appellants are before this tribunal.
6. We have heard Shri B.L. Narasimhan and Ms. Sukriti Das, learned Advocates for the appellants and Shri Ranjan Prakash, learned Authorized Representative for the department.
7. Learned Counsel for the appellants submitted that goods in question intended were for retail sale at the time of clearance from 4 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 factory. Thus, RSP was correctly declared in terms of the legal Metrology (Packaged Commodities) Rules, 2011 and duty was correctly paid under Sr. No. 1A of Notification No. 4/2006. The Cement is cleared to both trade parties and non-trade parties as under: -
Trade Parties (Retail consumers, dealers, etc.) - From factory as well as from depot/dumps Government Agencies and Non-Trade Parties (Industrial / Institutional Consumers) - From Factory. On exceptional basis, cement is also sold to Non-Trade Parties from depots / dumps.
8. For the goods intended for sale to Trade parties and Government Agencies, Apellant affixed retail sale price as is required under Standards of Weights and Measures Act, 1976 ('SWM Act') and Standards of Weights and Measures (Packaged Commodities) Rules, 1977 ('PC Rules'). Duty was therefore paid under Sr. No. 1A of Notification No. 4/2006-CE dated 01.03.2006 ('Notification No. 4/2006'). For goods meant for sale to Industrial / Institutional Consumers, packages were labelled as 'Not for Retail Sale'. Duty was paid under Sr. No. 1C of Notification No. 4/2006.
9. On exceptional basis, RSP affixed goods available at depots / dumps, were sold to Industrial / Institutional Consumers. These goods being affixed with RSP, duty was paid under Sr. No. 1A of Notification No. 4/2006, even though they were sold to Industrial / Institutional Consumers from depots / dumps. 5
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10. It is submitted that Sr. No. 1A of Notification No. 4/2006 prescribes duty on goods having retail sale price. The goods in question when cleared from the factory were intended to be sold to Trade parties, i.e. in retail sale.
11. Rule 2(p) of PC Rules defines 'retail package' as packages which are intended for retail sale to the 'ultimate consumer' which excludes industrial or institutional consumers. Rule 2A of PC Rules excluded the following categories from the requirement of declaring RSP: -
Packages of commodities containing quantity of more than 25 kg or 25 litre excluding cement and fertilizer sold in bags upto 50kg; and Packaged commodities meant for industrial consumers or institutional consumers.
12. In the present case, the cement bags being of upto 50 kg were not excluded from declaration of RSP by first condition. Further, since at the time of removal from factory, since same goods/cement bags in question were not meant for industrial / institutional consumer, they were not excluded from declaration of RSP due to said second condition also.
13. For this reason, RSP was affixed as required in terms of PC Rules on the goods in question. It was only thereafter at the depot that some RSP affixed goods happened to be sold to institutional consumers.
6
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14. However, once RSP was affixed on such goods which were not intended or meant for industrial / institutional consumers, duty was payable under Sr. No. 1A only. In this regard, reliance is placed on the following decisions, where it was held that once RSP was affixed on goods, duty was payable under Section 4A of Central Excise Act (CEA). Merely because the said goods were sold to industrial consumers thereafter would not render duty payable under Section 4 of CEA. Learned Counsel has relied upon the following decisions:
SPL Ltd. v. CCE, Rohtak, Final Order No. A/53548/2015-EX[DB] date 20.11.2015 H&R Johnson (India) Ltd. v. CCE, Raigad, 2014 (306) ELT 645 (Tri. - Mumbai) Affirmed by Supreme Court in Commissioner v. H&R Johnson (India) Ltd., 2015 (319) ELT A227 (S.C.) Nitco Tiles v. CCE, Raigad, 2015 (315) ELT 296 (Tri. - Mumbai)
15. It is further submitted that without prejudice, even if it is accepted that there was no requirement to affix RSP under PC Rules for goods in question sold to industrial / institutional consumers, it is submitted that Notification No. 4/2006 provides for an Explanation. Third proviso to explanation reads as follows:
"Provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form;" 7
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16. The above proviso clarifies that even in cases where RSP was not required to be declared, if the same is declared the goods would not be covered under Sr. No. 1C. Therefore, duty has been correctly paid under Sr. No. 1A of Notification No. 4/2006. Reliance is placed on following decisions: -
Parasakti Cement Industries Ltd. v. CCE, Guntur, 2020 (6) TMI 329 - CESTAT Hyderabad CCE, Hyderabad - III v. Sagar Cement Ltd., 2010 (256) ELT 616 (Tri. - Bang.) Affirmed by Supreme Court in Commissioner v. Sagar Cement Ltd., 2011 (271) ELT A 16 (S.C.)
17. Finally, it is submitted that extended period of limitation is not invokable and entire demand is time barred as there is no suppression on part of the appellants. For the same reasons, penalty is not imposable and interest is not payable. Reliance is placed on following decisions: -
Parasakti Cement Industries Ltd. v. CCE, Guntur, 2020 (6) TMI 329 - CESTAT Hyderabad Neem Metal Proudcts Ltd. v. CCE, Delhi-III, 2017 (7) G.S.T.L. 76 (Tri. -Chan.) CCE, Jalandhar v. Royal Enterprises, 2016 (337) ELT 482 (SC) CCE, Noida v. Accurate Chemical Industries, 2014 (310) ELT 441 (All) 8 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021
18. Once the demand itself is required to be dropped on merits and on limitation in above terms then penalty is not imposable and interest is also not payable. With these submissions, the order under challenge is prayed to be set aside.
19. While rebutting the submissions made on behalf of appellant, Learned Authorized Representative appearing for the department submitted that the genesis of the disputes pertain to changes made in excise duty structure for cement in the budget 2007 and amendment made in the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 [now Legal Metrology (Packaged Commodities) Rules, 2011] with effect from 14.1.2007.
With respect to changes in excise duty structure for cement in the budget 2007, it is submitted that prior to the budget 2007, cement falling under sub-heading 2523 29 attracted specific excise duty @ Rs. 400 per tonne [tariff rate] and duty was collected as per Section 3 of the Central Excise Act, 19444 [hereinafter referred as the said Act, 1944]. In the budget 2007 [with effect from 1.3.2007] cement was included in the Third Schedule of said Act, 1944 so as to provide that in relation to products of sub-heading 2523 29, packing or repacking in unit container, labelling or relabelling of packages, including the declaration or alternation of retail sale price on it or adoption of any other treatment to render the product marketable to the consumer, shall amount to manufacture.
20. Also, [with effect from 1.3.2007] the tariff rate of excise duty on cement was also increased from Rs. 400 PMT to Rs. 600 PMT [Pg 14 of Vol 1] and concessional excise duty rates were prescribed on 9 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 cement [notification No 4/2006-CE dated 1.3.2006 was amended vide notification No 4/2007-CE dated 1.3.2007] as under: -
a) Excise duty of Rs. 350 per metric tonne for cement cleared in packaged form, where declared retail sale price did not exceeded Rs. 190 per 50 Kg. bag
b) Excise duty of Rs. 600 per metric tonne [tariff rate] for cement cleared in packaged form where declared retail sale price exceeded Rs. 190 per 50 Kg. bag
c) Excise duty of Rs. 400 per metric tonne for cement cleared other than those in packaged form.
21. Thus, a lower excise duty was provided for cement where declared retail sale price did not exceed Rs. 190 per 50 Kg. bag. Further, with effect from 3.5.2007, excise duty @12% of retail sale price was provided for cement of retail sale price exceeding Rs. 190 per 50 kg bag vide notification No 23/2007-CE dated 3.5.2007.
22. It is further submitted that cement was not notified under Section 4A of the Central Excise Act, 1944. Section 4A(1) of the said Act, has inter-alia borrowed the provisions of the Standards of Weights and Measures Act, 1976 or the rules made thereunder relating to retail sale price for the purpose of assessment under Section 4(2) of the said Act [Pg 21 of Vol 1]. In the instant case the third proviso of the Explanation 2 relating to S.No 1A and 1C of notification Noo 4/2006-CE has borrowed the provisions of the Standards of Weights and Measures (Packaged Commodities) Rule, 1977 [hereinafter referred as the PC Rules 1977] relating to sale 10 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 price for determination of rate of duty under S.No 1A or 1C of said notification.
23. Thus, the provisions related to non-declaration of retails sale price under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, would apply to determine excise duty for cement cleared in other than packaged form and provisions related declaration of retails sale price under the PC Rules, 1977 would apply to determine duty in respect of cement cleared in packaged form.
24. Excise duty under S. No 1A and 1C of notification No 4/2006- CE is exclusive to each other and mere declaration/non-declaration of retail sale price would not make clearance eligible under S. No 1Aor 1C without satisfying the other requirements indicated in these entries. Learned Departmental Representative has relied upon the following decisions:
(i) Heidelberg Cement (India) Ltd. reported as 2015 (315) E.L.T. 53 (Tri. Mumbai)
(ii) Grasim Industries Ltd. (Unit-I) reported as 2015 (315) E.L.T. 53 (Tri. - Mumbai)
(iii) Jaypee Rewa Plant reported as 2018 (360) E.L.T. 98 (Tri.-Del)
(iv) Rain Commodities Ltd. reported as 2011 (267) E.L.T. 286 (Tri.-Bang)/Rain Commodities Ltd. reported as 2011 (269) E.L.T. A22 (SC)
(v) Nuvoco Vistas Corporation Ltd. reported as 2019 (370) E.L.T. 321 (Tri.-Kolkata) 11 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021
(vi) M/s. Birla Corporation Final Order No. 51667/2019 dated 29.07.2019
(vii) Parasakti Cement Industries reported as 2019 (2) TMI (1059) Tri - Hyd
(viii) Dilip Kumar & Company reported as 2018 (361) E.L.T. 577 (SC)
(ix) Madras Cement Ltd. reported as 2020 (371) E.L.T. A42 (SC)
(x) Madras Cement Ltd. reported as 2017 (346) E.L.T. 463 (Tribunal)
(xi) Sanghi Industries Ltd. reported as 2015 (315) E.L.T. 53 (Tri.-Mumbai)/Sanghi Industries reported as 2021 (377) E.L.T. A85 (SC)
(xii) A R Polymer Pvt Ltd reported as (2023) 4 Centax 380 (SC)
(xiii) Mexim Adhesive Tapes Pvt. Ltd. reported as 2013 (291) E.L.T. 195 (Tri.-Ahmd.)
(xiv) UT Starcom Inc. reported as 2019 (370) E.L.T. 937 (Tri.-Chennai)
(xv) Pashupati Spinning & Weaving Mills Ltd reported as 2015 (318) E.L.T. 623 (SC) (xvi) IOC Ltd. reported as 2003 (161) E.L.T. 375 (Tri.-
Kolkata) (xvii) Maruti Udyog Ltd. reported as 2001 134 E.L.T. 269 (Tri.-Del.) (xviii) Neminath Fabrics Pvt Ltd reported as 2010 (256) E.L.T. 369 (Guj.) 12 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 (xix) Tyco Submarine Systems Ltd reported as 2005 (185) E.L.T. 101 (Tri.-Mum)/Videsh Sanchar Nigam reported as 215 (321) E.L.T. A273 (SC) (xx) Steel Authority of India Ltd reported as 2019 (366) ELT 769 (SC) With these submissions, the appeals are prayed to be dismissed.
25. Having heard both the parties at length. The moot question to be adjudicated is observed as follows:
"Whether the appellants have rightly claimed the benefit of Entry No. 1 A and 1C of the Notification No. 4/2007 dated 01.03.2007 as amended?"
26. To adjudicate the said issue, foremost we need look into the notification. The notification reads as follows:
S.No. Chapter or Description of excisable goods Rate Condition heading or sub- No. heading or tariff item of the First Schedule
(i) (2) (3) (4) (5)
1. 2523 29 All goods, manufactured in a mini cement plant and cleared in packaged form-
(i) of retail sale price not exceeding Rs. 190 per 50 kg bag or or per Rs. 220 per tonne 1 tonne equivalent retail sale price not exceeding Rs. 3800;
(ii) or retail sale price exceeding Rs. 190 per 50 kg bag or of per tonne Rs. 370 per tonne 1 equivalent retail sale price exceeding Rs. 3800;
1A 2523 29 All goods, whether or not manufactured in a mini cement plant, no covered in S.No. 1 and cleared in packaged form-
(i) of retail sale price not Rs. 350 per - exceeding Rs. 190 per 50 kg bag tonne or of per tonne equivalent retail sale price not exceeding Rs.
3800; -]
(ii) of retail sale price exceeding 12% of retail Rs. 190 per 50 kg bag but not sale price exceeding Rs. 250 per 50 kg bag 13 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 or of per tonne equivalent retail sale price exceeding Rs. 3800 but not exceeding Rs. 5000;
1B. 2523 29 All goods, manufactured in a mini Rs. 250 per tonne 1 cement plant, other than those cleared in packaged form;
1C 2523 29 All goods, whether or not 14% or Rs. 400 -] manufactured in a mini cement per tonne, plant, not covered in S.No. 1B, whichever is other than those cleared in higher packaged form;
Explanation - For the purposes of S.Nos. 1, 1A, 1B and 1C,-
(i) "mini cement plant" means-
(i) a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or
(ii) a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000tonnes per annum and the total clearances of cement produced by the factory, in a financial year, shall not exceed 3,00,000 tonnes;
2. "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price so printed is the sole consideration for the sale:
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 duty under respective S.Nos. referred to above:
Provided further that if the declared sale price on wholesale package and on the standard packages is different in terms of per tonne equivalent sale price, then, the per tonne equivalent sale price of the wholesale package or per tonne equivalent retail sale price of the standard packages, whichever is higher, shall be taken into consideration for determining the rate of duty:
Provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures ( Packaged Commodities) Rules, 199, and thus not declared, the duty shall be determined as is in the case of goods cleared in other than packaged form;
3. Where on the package, more than one retail sale price is declared, the maximum of such retail sale prices shall be deemed 14 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 to be the retail sale price;
4.(i) "per tonne equivalent retail sale price" shall be calculated in the following manner, namely:-
If the package contains X kg of cement and the declared retail sale price is Rs. Y, then the per tonne equivalent retail sale price = Y*1000 X Example: If the package contains 25 kg and retail sale price is Rs.
180, the per tonne equivalent retail Sale price: Rs.
180*1000 = Rs. 7200 25
(ii) "per tonne equivalent sale price" shall be calculated in a manner similar to that mentioned in (i) above.
Example: If the wholesale package contains 500 kg of cement and the declared price is Rs. 3200, the per tonne equivalent sale price = Rs.
(3200*1000) = Rs. 6400 500
27. The bare perusal of the above notification reveals that the notification is talking of:
(a) Goods manufactured in a mini cement plant (i) Cleared in packaged form - Entry No. 1
(ii) Cleared in unpackaged form - Entry No. 1B
(b) All goods whether or not manufactured in mini cement plant
(i) cleared in packaged form - Entry 1A
(ii) Cleared in non-packaged form - Entry 1C
28. Now we see that the department has questioned the benefit of S.No. 1A of this notification as availed by the appellant. As apparent from Entry No. 1A, the following conditions are required to be met with.
(i) All goods (cement herein) is to be cleared in packaged form. 15
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(ii) The retail price is not exceeding Rs.190 per 50 kg bag or not exceeding Rs. 3800 per tonne in which case duty at the rate of 350 per tone is to be paid.
(iii) The retail price is exceeding 190 per 50 kg but is not exceeding Rs. 250 per kg. Similarly, the price is not exceeding Rs.5,000/- per tonne in which case duty at the rate of 12% ofretail sale price is to be paid. The another clarity as is apparent from the said notification is that the notification as amended during the relevant period, is silent about any distinction between trade (consumer) and non-trade (industrial/institutional buyers) parties as has been raised in the impugned show cause notice.
29. In the light of these observations, to our understanding, we need not to dwell into the several issues raised during the arguments vis-a-vis distinction between trade and non-trade parties, the relevance of retail sale price on the commodities sold to trade. However, it is clear from the Rules of 1977 i.e. the Standards of Weights and Measures (Packaged Commodities) Rules that there is no need of printing RSP on the commodities sold to the institutes or the industries. Simultaneously, the rules nowhere mandates that the goods sold to industries or institutes shall not have the RSP if sold in packaged form. It stands clear that the goods sold to industry/institute do not need to have RSP but if RSP is printed, there is no statutory bar prohibiting the same.
30. Reverting to the facts of the present case, following are the admitted facts:
16
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(i) During the period in dispute i.e. 01.01.2008 to 28.02.2011, the appellant was clearing cement to Directorate General of Supplies and Disposals (DGS&D) which is set up by the Central Government under Ministry of Commerce & Industry as central purchase and quality assurance organization to be used by various other agencies.
(ii) The appellant was clearing cement to the government agencies on declaration of retail sale price.
(iii) The cement was cleared in 50 kg bags i.e. in packaged form.
31. From these admitted facts it stands clear that once the appellant was not selling goods to the ultimate consumer but to DGS&D who had to supply it further to the actual consumers, it becomes clear from the Explanation (2) of the Notification No. 4/2007 that irrespective the cement was cleared in packaged form RSP was not required on those bags. As already observed above there was otherwise no bar of fixing RSP on the packaged goods not meant for direct consumers. Resultantly, we hold that the mere fact that RSP was affixed on the packaged form by the appellant does not make the packaged clearance as a retail sale. However, from the notification in question, as already observed above, the controversy is not the applicability/mandate of affixing RSP or not, it is to be seen whether the goods are cleared in the packaged or non-packaged form. Once it is an admitted fact that the goods were cleared in packaged form, we do not see any reason for applicability of S.No. 1C of Notification No. 4/2007 which talks 17 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 about the rate of duty on the goods which are cleared in unpackaged form.
32. In the light of these observations, the entire show cause notice and even the Order-in-Original is held to be mere presumptive of the fact that once the goods are cleared in packaged form the clearance cannot be the institutional/industrial clearance. It is a retail clearance where retail price has to be mandatorily fixed and duty has to be paid based on the retail price. But the entire above discussion about the notification in question and even about Weights and Measures Rules makes it clear that mere affixations of RSP is not sufficient to hold that the clearance was not the institutional/industrial sale. In such circumstances, it was Entry no. 1A which is applicable to the given set of facts, specifically in light of the admitted fact that the goods were cleared in packaged form.
33. In view of above discussion, we hold that none of the decisions as relied upon by the department is applicable to the impugned set of facts and circumstances. The decisions are purely meant to create a distinction between the institutional consumers and the actual consumer. The Board's own clarification dated 12.06.2008 has clarified that the government companies are as good as the other construction companies and are categorized the industrial/institutional consumers. Though case law relied upon by the department says that where the RSP is not required, the clearance of goods has to be considered as if goods are cleared in unpackaged form but still none of the decisions is applicable to the fact of the present case as the Notification No. 4/2007 stands 18 Excise Appeal No. 52207 of 2021 Excise Appeal No. 52210 of 2021 amended during the relevant period where RSP was no more the criteria for applicability of the different entries of the notification. The notification had only one criteria irrespective that the cement was manufactured in mini cement plant or not and i.e. whether it is cleared as packaged or unpackaged form. In the present case, the cement was cleared in packaged form to the institutional consumer.
33. In the light of entire above discussion, we hold that since the appellant has cleared cement in packaged form i.e. in the bags of 50 kg each with RSP printing thereupon to the institute DSD&G, the appellant is held entitled for the benefit of Entry No. 1A of the said Notification No. 4/20027 dated 1.3.2007. Resultantly, the order under challenge is set aside. Consequent thereto, both the appeals are allowed.
[Order pronounced in the open court on 13.05.2025] (DR. RACHNA GUPTA) MEMBER (JUDICIAL) (P.V. SUBBA RAO) MEMBER (TECHNICAL) HK