Custom, Excise & Service Tax Tribunal
Ambuja Cements Ltd., (Unit- Bhatapara) vs C.C.E. Raipur on 19 December, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. I
Appeal No. E/43/2009-EX [DB]
[Arising out of the common Order-In-Original No. Com./PRP/85/2008 Dated 10.10.2008 passed by Com. Central Excise, Raipur Commissionerate Central Excise Bhavan, Dhamtary Road, Tikapara, Raipur-492-001 (C.G.)]
Ambuja Cements Ltd., (Unit- Bhatapara) Appellant
Vs.
C.C.E. Raipur Respondent
Appearance:
Sh. Vipul Agarwal, Ld. Advocate for the appellant
Sh. Amresh Jain, Ld. AR for the respondent
CORAM:
Honble Justice Mr. Dr. Satish Chandra, President
Honble Mr. Ashok K. Arya, Member (Technical)
Date of Hearing.10.11.2016
Date of decision.19.12.2016
Final Order No.55908/2016
Per Ashok K. Arya:
1. The appellant, M/s Ambuja Cements Ltd. (Unit- Bhatapara) is in appeal against Commissioner Raipurs order dated 14.10.2008 whereunder demand of Rs. 36,95,376/- has been confirmed denying them the benefit of Notification No.-4/2006-CE dated 01.03.2006 (as amended)
1.1 The issue involved is as to whether the cement cleared by the appellant to the customers covered under serial No.1C of the Notification No.4/2006-CE dated 01.03.2006 read with Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and whether such consumers can be categorized as institutional or industrial consumer.
2. The appellant has been represented by Ld. Advocate Sh. Vipul Agarwal and Revenue has been represented by Ld. AR, Amresh Jain.
3. The brief facts are that the appellant is engaged in the manufacture of Cement and Clinker falling under Chapter heading 252329 and was clearing the same, inter alia,to various buyers in 50kg bags. Such buyers included manufacturer of excisable items, construction service providers, Government Departments and Charitable institutions/trusts. Some of the cement was also used for self-consumption and for quality control. During the period of dispute, Appellant had cleared 62673.633 MT cement by discharging duty liability at the concessional rate of Rs. 400/- MPT as prescribed under Sl. No 1C of Notification No. 4/2006-CE dated 01.03.2006 (as amended). Relevant part of the Notification is as follows:
S. no.
Chapter or heading or sub-heading or tariff item of the first schedule
Description of excisable goods
Rate
Condition no.
(1)
(2)
(3)
(4)
(5)
1C
252329
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 purpose of Sl. Nos. 1, 1A,1B and 1C,-
mini cement plant means-
(i)
(ii)
2. retail sale price means
Provided
Provided
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 from;
Rs. 400 per tone
-
3.1 From the above provisions of the Notification it is clear that to fall within the purview of Sl. No. 1C, retail sale price of the goods must not be required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 or SWMPC Rules.
4. After careful consideration of the facts of the case and the submissions of both the sides, it appears that the issue is squarely covered by CESTAT decisions in the case of Grasim Industries Ltd. vs. Commissioner of Central Excise, Trichi-2008-TOIL-2328-CESTAT-Mad. and Heidelberg Cement (India) Ltd. and M/s Ultra Tech Cement Ltd. v/s CCE, Nagpur, Raigad 2014-TOIL- 1433 (CESTAT Mum.) CESTAT Bombay in the case of Heidelberg Cement (India) Ltd. and M/s Ultra Tech Cement Ltd (supra) in its paras 5.4 and 5.6 observes as under:
5.4. There is no dispute that the goods were sold by the appellant directly to the builders/developers/Ready Mix Concrete (RMC) manufacturers. RMC is an excisable product and therefore, the sale of cement for manufacture of RMC would definitely come within the category of sale to industrial consumers. As regards builders/developers etc., construction activity is a service activity as is well understood and there is also a Service Tax levy on construction activity. Therefore, sale to such builders/developers would certainly qualify as sale to institutional consumers. The argument of the Revenue that since the sale is not to consumers like transportation, airways, railways, hotels, hospitals and any other service institution and since the builders/developers have not been specifically included and, therefore, such sale would not qualify as sale to institutional consumer is bereft of logic because only certain service providers have been specifically mentioned therein; others are covered by the expression like and any other service institution similar to those specifically mentioned. The institutional consumers mentioned are transportation, hotels and hospitals which do not from any particular class. Therefore, the principle of ejusdem generis will not apply. Any service institution would qualify as institutional consumers.
5.5.
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 ld. 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 SI. No. 1B or 1C of Notification No. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to SI. No.1C of the Notification as amended. The Boards clarification squarely covers the case in favour of the assessee. Further, in the case of Mysore Cement Ltd. 2010 (249) ELT 398, this Tribunal held that construction industry is a service industry and benefit claimed by the appellants under the aforesaid Notifications Shall be admissible. The said decision was upheld by the Honble High Court of Karnataka (supra). Again in the case of India Cement Ltd.- 2009-TIOL-1464-CESTAT- MAD, it was held that cement cleared to industrial/institutional consumers in 50 kg bags are eligible of the benefit of Notification No. 4/2006 under Sr. No. 1C. Thus it can be seen that this Tribunal as also the High Court have been consistently holding that institutional/industrial consumers are eligible for the benefit of Notification No. 4/2006 and Notification No. 12/2012.
4.1 As facts are similar to the facts of the decisions quoted above; therefore, following the decisions in case of Grasim Industries Ltd. (supra) and Heidelberg Cement and Ultra Tech Cement Ltd (supra), the appellant would be eligible for the benefit of Notification No. 4/2006 under Sr. No. 1C of the table annexed to it.
5. In the result the impugned order is set aside and the appeal is allowed with the consequential relief to the appellant.
[Pronounced in open Court on 19.12.2016] (Justice (Dr.) Satish Chandra) President (Ashok K. Arya) Member (Technical) NK 2-Page E/43/2009/-EX [DB]