Custom, Excise & Service Tax Tribunal
Cce, Bhopal vs M/S Jaypee Rewa Plant on 3 November, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing/Order : 3.11.2016
Appeal No. E/3653/2010-EX. (DB)
(Arising out of Order-in-Original No. 15/Commr/CEX/Adj/STN/2010 dated 29.7.2010 passed by the Commissioner, Customs, Central Excise & Service Tax, Bhopal)
CCE, Bhopal Appellant
Vs.
M/s Jaypee Rewa Plant Respondent
Appearance Shri Amresh Jain, D.R. - for the appellant Shri Amit Jain, Advocate - for the respondent CORAM: Honble Mr. S.K. Mohanty, Member (Judicial) Honble Mr. Ashok K. Arya, Member (Technical) Final Order No.55298/2016 Per Ashok K. Arya:
Revenue is in appeal against the Commissioners order dated 29.7.2010 where the demand of Central Excise duty on concessional rate items i.e. cement has been confirmed without giving benefit of Notification No. 4/2006-CE dated 1.3.2006.
2. The department contests the applicability of concessional rate of duty under Notification No. 4/2006. The main argument of the Revenue is that the item cement has not been cleared to industrial and institutional consumers; therefore the respondent is not entitled to the benefit of Notification No. 4/2006 (supra).
3. The respondent inter alia cites the CESTAT Delhi decisions in the cases of Grasim Industries Ltd. Vs. CCE, Jaipur-II 2004 (175) ELT 779 (Tri.-Delhi) and Grasim Industries Ltd. (Unit-I), Vs. CCE, Trichy -2009 (238) ELT 655 (Tri.-Chennai) and CESTAT, Mumbai decision in the case of M/s Heidelberg Cements (India) Ltd. and M/s Ultratech Cement Ltd. Vs. CCE, Nagpur, Raigad 2014-TIOL-1433-CESTAT/MUM and further refers to CBECs clarification F.No. 124/02/2008-CX-3 dated 12.6.2008 saying that such goods are entitled to benefit of Notification No. 4/2006 (supra) under Sr. No.1C of the Table annexed with the said Notification as the goods were sold to industrial and institutional consumers and not to retail buyers.
4. We find that matter is squarely covered by the various decisions of this Tribunal. As facts are similar, some of the paras of the CESTAT, Mumbai decision in the case of M/s Heidalberg Cement Ltd. and M/s Ultratech Cement Ltd. (supra) are quoted below.
2. The appellants are manufacturers of cement. There is a statutory requirement to affix MRP on packages sold to dealers for further sale to consumers in retail under the Legal Metrology (Packaged Commodities) Rules, 2011 (PC Rules in short). The appellants have complied the provisions of these Rules. The appellants have also cleared cement in 50kg bags to various bulk consumers like, builders/developers/industrial users, who use the cement for construction purpose or as raw material. Such buyers are covered by the definition of industrial consumer or institutional consumer under explanation to Rule 2A of PC Rules, 1977 and Rule 3(ii) of PC Rules, 2011. As per these provisions, commodity meant for industrial consumer or institutional consumers are not required to be affixed with MRP. Accordingly, the appellants have not declared the MRP on the cement bags and specifically have declared on the packages as Not for Retail Sale- meant for industrial consumer/institutional consumer/RMC consumption. They have discharged excise duty liability on such cement bags availing the benefit of Sr. No.1C of Notification No. 4/2006-CE dated 1.3.2006 as amended from time to time during the period May, 2007 to 16.3.2012 and under Sr. No. 52 of Notification No. 12/2012-CE dated 17.9.2012 for the period from 17.3.2012 onwards. As per these entries in the notifications, cement bags of 50 kg. cleared to industrial or institutional consumers, which is not subject to fixation of MRP, is eligible for concessional rate of duty as provided therein. However, the department was of the view that the appellants are not eligible for the aforesaid exemption benefit inasmuch as the sale to buyers like, builders/developers etc. cannot be considered as sale to industrial/institutional consumer and, therefore, the appellants are liable to discharge excise duty at the tariff rate. Consequently, differential duty liability has arisen and the duty demands were confirmed along with interest and also by imposing penalties. 5.6 In the Grasim Industries case (supra), this issue was specifically examined by this Tribunal and it was held as follows:
As rightly pointed out by the learned Counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Boards clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessees case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl. No. 1B or 1C of Notification No. 4/2006-CE by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended. The Boards clarification squarely covers the case in favour of assessee. 4.1 By following the decision in the case of M/s Heidalberg Cements India Ltd. (supra) and the case laws cited by the respondent mentioned above, we reject the appeal filed by the Revenue as without merits.
(Dictated & pronounced in open Court) (S.K. Mohanty) Member (Judicial) (Ashok K. Arya) Member (Technical) RM 2