Custom, Excise & Service Tax Tribunal
M/S Ambuja Cement Limited vs C.C.E. & S.T. Bhavnagar on 23 April, 2018
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/367,473,499/2009-DB [Arising out of OIO-09-14/BVR/COMMISSIONER/2009 dated 09.01.2009 passed by the CCE Bhavnagar] [Arising out of OIO-01-04/BVR/COMMISSIONER/2009 dated 07.01.2009 passed by the CCE Bhavnagar] [Arising out of OIO-05-08/BVR/COMMISSIONER/2009 dated 07.01.2009 passed by the CCE Bhavnagar] M/s Ambuja Cement Limited Appellant Saurashtra Cement Limited Gujarat Sidhee Cement Limited Vs C.C.E. & S.T. Bhavnagar Respondent
Represented by:
For Appellant: Mr. A. Nainawati & S. Dixit (Advocate) For Respondent: Mr. A Mishra & L. Patra (AR) CORAM:
HONBLE PRESIDENT DR. SATISH CHANDRA HONBLE Mr. C.J. MATHEW, MEMBER (TECHNICAL) Date of Hearing/Decision:23.04.2018 Final Order No. A / 10745-10747 /2018 Per: Dr. Satish Chandra The present appeals have been filed against Order in Original No. 09-14/2009 dated 09.01.2009; 05-08/2009 dated 07.1.2009; and 01-04/2009 dated 07.01.2009.
2. The brief facts of the case are that the appellants are engaged in the manufacture of Cement which attracts the Central Excise duty. They were claiming concessional duty in terms of serial No. 1(c) of the Notification No. 4/2006 dated 01.03.2006 for clearance to various industrial organizations/ industrial consumers. Proceedings were initiated against the appellants and held that these buyers do not qualify in terms of Rule 2A of the Standards and Weights and Measure (Packaged Commodities) Rules 1977. Proceedings initiated culminating in the impugned orders. Being aggrieved by the said orders, the appellants have filed the present appeals. With this background, we heard Sh. A. Nainawati and Sh. Saurabh Dixit (Advocates) for the Appellants and Sh. A. Mishra and L. Patra (A.R.s) for the Respondent.
3. After hearing both the sides, it appears that identical issue adjudication has come up before the Tribunal in the case of M/s Shri Cement Ltd. vs Commr. of Central Excise 2017-TIOL-219-CESTAT-DEL., as well as in the case of Diamond Cement vs Commr. of Central Excise, 2017 (352) ELT 177 (S.C.), where it was observed that:
5. We note that a similar situation came up before the Tribunal in the case of Prism Cement where the sale of cement to various categories of buyers, including individuals was considered. The Tribunal vide the final order No. 53855-53856/2016 dated 28.09.2016 held that the definition of retail sale as per Rule 2(q) of the PC Rules are to be examined before deciding the nature of sale. Admittedly, the cement without marking of RSP has been sold by the appellant directly to consumers and as such these transactions do not qualify as retail sale in view of the statutory definition which requires sale, distribution or delivery of such commodity through retail sale agency or other instrumentality for consumption by an individual. In the present case, the sales without RSP marking is direct to the consumer not through an intermediary as such the criteria for retail sale has not been fulfilled. As such, the Tribunal held that whenever such direct sale is affected application of PC Rules will not be governed by Rule 3.
6. In view of the above discussion and decided cases, we find that the impugned order is not legally sustainable. Accordingly, same is set-aside and the appeals are allowed.
4. By following our earlier order (supra), we find no reason to sustain the impugned orders. The same are not justified and set aside.
5. In the result, all the three appeals are allowed.
(Dictated and pronounced in the open court)
(MR. C.J. MATHEW) (DR. SATISH CHANDRA)
MEMBER (TECHNICAL) PRESIDENT
Neha
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