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Appearance:
Shri Prasad Paranjape, Advocate, for appellant Shri M.R. Melvin, Superintendent (AR), for respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Hon'ble Mr. P. Anjani Kumar, Member (Technical) Date of Hearing: 24.8.2018 Date of Decision: 24.8.2018 ORDER No. A/87305/2018 Per: P. Anjani Kumar M/s ACC Limited (Chanda Cement Works), the appellants are engaged in the manufacture of cement falling under Chapter 25 of CETA, 1985. The appellants cleared packed cement from their factory for captive consumption availing concessional rate of duty as per entry 1C of Notification No.4/2007-CE dated 01.03.2007. Revenue contended that the benefit of the Notification cited above, for the reasons that the 2 E/374/2010 appellant is not a mini-cement plant; the clearance being for captive consumption no retail sale is involved and the clearances are in packaged form only. Revenue issued an SCN dated 2-4-2008 to the appellants, which was confirmed by OIO dated 30-8-2008. On an appeal filed by the appellants Commissioner (A) has upheld OIO vide order dated 26-11-2009. Hence this appeal.
2.2. He submitted that the issue is no longer Res Integra as it was decided squarely in their favour, as per the ratio of following cases.
(i). CCE Bangalore Vs Mysore Cements Ltd 2010(259) ELT 30 (Kar)
(ii). ACC Ltd Vs CCE, Coimbatore 2018(359) ELT 572 (Tri-Chennai)
(iii). Ambuja Cements Ltd Vs CCE, Raipur 2018(360) ELT 121(Tri-Del)
(iv). Grasim Industries Ltd(Unit-I) Vs CCE, Trichy 2009(328) ELT 655(Tri-Chennai) 4 E/374/2010 2.3. He further submitted that the demand is time barred. SCN was issued on 2-4-2208 covering a period 01.03.2o07 to 31-01-2008. The appellants have disclosed their intention to claim benefit vide letter dated 21-05-2007. As the demand itself is not maintainable, interest and penalty provisions do not apply.
6 E/374/2010 required to be charged to duty in terms of 1C of the said Notification.
4.1. We find that the CBEC Circular has also clarified on the above lines. Tribunal in the case of ACC Ltd Vs CCE, Coimbatore (Supra) held that cement cleared for self-consumption cannot be considered as 'retail sales' under Rule 3(q) of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977. Similar view was expressed in the other cases cited by the counsel for appellants. Therefore, we find that the appellants case is squarely covered by the circular cited above and the ratio of the decision in the cases cited. Therefore, we find that the impugned order is not maintainable under law.