Custom, Excise & Service Tax Tribunal
M/S Jaypee Bela Plant vs Cce, Bhopal on 29 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 3.11.2016
Date of Pronouncement: 29.11.2016
Appeal No. E/1512-1513/2012-EX. (DB)
(Arising out of Order-in-Original No. 07-08/COMMR/CEX/ADJ/STN/2012 dated 12.3.2012 passed by the Commissioner, Central Excise & Customs, Bhopal)
M/s Jaypee Bela Plant Appellant
M/s Jaypee Rewa Plant
Vs.
CCE, Bhopal Respondent
Appearance
Shri Amit Jain, Advocate - for the appellant
Shri Yogesh Agarwal, , A.R. - for the respondent
CORAM: Honble Mr. S.K. Mohanty, Member (Judicial)
Honble Mr. Ashok K. Arya, Member (Technical)
Final Order No. 55462-55463/2016
Per Ashok K. Arya :
The two appellants viz. M/s Jaypee Bela Plant and M/s Jaypee Rewa Plant are in appeal against the respective orders of Commissioner where demand of service tax along with interest has been confirmed and the appellants have been refused the benefit of Notification No. 4/2006-CE dated 1.3.2006.
2. The appellants have been represented by ld. Advocate Shri Amit Jain and Revenue has been represented by ld. AR Shri Yogesh Agarwal.
3. The matter concerns with the eligibility of benefit of Notification No. 4/2006-CE dated 1.3.2006 for the goods viz. cement exported to Nepal.
4. The appellants state that they are entitled to the benefit of Notification No. 4/2006-CE (supra) as their goods are qualified for the benefit either as per S. No.1A or S. No. 1C of the table annexed with the said notification. The relevant entries i.e. S. No. 1A and 1C given in the table annexed with the said Notification No. 4/2006-CE (supra) are as below:
S.No.
Chapter or heading or
sub-heading or tariff item
of the First Schedule
Description of excisable goods
Rate
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,-
i) of retail sale price not exceeding Rs.190 per 50 kg bag or of per tonne equivalent retail sal price not exceeding Rs.380;
ii) of retail sale exceeding Rs.190 per 50 kg bag or or per tonne equivalent retail sale price exceeding Rs.3800
Rs.290 per tonne
1C.
2523.29
All goods whether or not manufactured in a mini cement plant, not covered in S. No., 1B, other than those cleared in packaged form;
Explanation- For the purposes of S. Nos. 1, AA,1B and 1C,-
1. mini cement plant means
(i) A factory using vertical shaft kiln, with installed capacity not exceeding 30 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 1,09,50 tonnes; or
(ii) A factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes 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 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;
3......................
4..........................
10% or Rs.290 per tonne, whichever is higher
5. The contents of the notification and of the table annexed therewith at Sr. No.1A and 1C are very clear that when the subject goods are not covered for declaration of retail price under Standards of Weights and Measures (Packaged Commodities) Rules, 1977, the benefit of the notification under Sr. No. 1A is not admissible for the subject goods; however, the goods where the retail sale price is not required to be cleared other than package form would be entitled to the benefit in this Notification No. 4/2006-CE (supra) under its S. No. 1C of the table attached. Therefore, by reading the description of excisable goods mentioned in Col. 3 at S. No. 1C of the table annexed to the subject notification, the appellant in respect of the goods exported to Nepal is entitled to the benefit of this notification. We find that CESTAT Delhi in the case of Prism Cement Ltd. Vs. CCE, Bhopal 2015 (326) ELT 361 (Tri.-Del.) decides the issue. The CESTAT in the said order, inter alia observed as under :
5.?We have perused Notification No. 4/2006. The third proviso to entry No. 1C of the table appended to the said notification reads as under :
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.
It is seen from 3rd proviso that where retail sale price of the goods is not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and thus not declared, the duty is to be determined as is in the case of goods cleared in other than packaged form. It is seen that even Revenue is not disputing the fact that RSP is not required to be declared on the cement bags exported to Nepal and no such MRP was declared either. Thus we do not find any ground whatsoever to exclude the appellants from the purview of the S. No. 1C of the said notification. In this regard it is also relevant to quote para 6 of Jayee Bela Plant judgment (supra).
6.?The cement in this case had been cleared in 50 kg. bag for export to Nepal. There is no dispute that in respect of goods cleared for export out of India there is no requirement to print the MRP and other particulars in terms of the Provisions of SWM Act, 1976 and the Rules made thereunder. Sl. No. 1A of the table annexed to the Notification No. 4/2006-C.E., prescribes rate of duty in respect of cement manufactured in a plant other than a mini-cement plant and cleared in packaged form, that is, in packages on which the MRP and other particulars are required to be declared in accordance with the provisions of SWM Act, 1976 and the Rules made thereunder. Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., prescribes effective rate of duty for the cement manufactured in a plant other than a mini-cement plant and other than that cleared in packaged form. In terms of third proviso to Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., where the retail sale price of the goods are not required to be declared under SWM Rules, 1977 and are not declared, the duty shall be determined as in the case of goods cleared in other than packaged form. Since, in this case the goods had been cleared for export to Nepal and as such there was no requirement to declare the MRP on the bags of the cement in accordance with the provisions of SWM Rules, 1977, the cement would have to be treated as other than packaged form even though the MRP had been printed and accordingly, we are of the prima facie view that the same would be covered by Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., where the duty is 14% adv. or Rs. 400/- per M.T. whichever is higher. There is no dispute that if the duty is charged at the rate prescribed in Sl. No. 1C of the table annexed to the Notification No. 4/2006-C.E., there would be no short payment. We find that same prima facie view had been taken by the Tribunal in the appellants own case for the previous period in the Stay Order No. 166-167/2012-EX(BR), dated 24-1-2012 by which the requirement of pre-deposit had been waived. In view of this, we are of the view that the appellant have a prima facie case in their favour. The requirement of pre-deposit of duty demand and interest is, therefore, waived for hearing of these appeals and recovery thereof stayed till the disposal of these appeals. The stay applications are allowed.
6.?Though CESTAT in the aforesaid judgment only granted stay in that case, we are fully in agreement with the reasoning contained in the above quoted paragraph.
7.?In the light of the foregoing, we find full merit in the appeal and therefore, allow the same.
6. In the light of the above discussion and following the CESTAT Delhi decision in the case of Prism Cement Ltd. (supra), both the appeals are allowed with consequential relief to the appellants.
(Pronounced in Court on 29.11.2016) (S.K. Mohanty) Member (Judicial) (Ashok K. Arya) Member (Technical) RM 1