2015 (3) TMI 474 - AT - Central Excise

CESTAT Mumbai grants waiver to Heidelberg Cement on pre-deposit, stays recovery during appeal

M/s HEIDELBERG CEMENT (INDIA) LTD Versus COMMISSIONER OF CENTRAL EXCISE, RAIGAD

The Appellate Tribunal CESTAT Mumbai granted the appellant, M/s Heidelberg Cement (India) Ltd., a waiver from pre-deposit of confirmed dues amounting to ... Valuation of goods - Section 4A - Whether the appellant is required to pay duty on cement bags of 50Kg supplied to construction industry on Retail Sale Price (RSP) basis or on transaction value basis - Held that:- Issue came up before this Tribunal in the case of Mysore Cement Ltd. Vs. Commissioner of Central Excise, Bangalore - II - [2009 (5) TMI 445 - CESTAT, BANGALORE] and Chettinad Cement Corporation Ltd. Vs. Commissioner of Central Excise, Trichy - [2008 (12) TMI 684 - CESTAT CHENNAI] it was held that construction industry is a service industry and, therefore, supply of cement to construction industry is exempted from declaration of Retail Sale Price (RSP) on the packages, and therefore, the assessment of such cement would not be covered by Section 4A of the Central Excise Act, 1944. Subsequently, the Hon'ble High Court of Karnataka in Commissioner of Central Excise, Bangalore-II Vs. Mysore Cements Ltd. - [2010 (8) TMI 246 - KARNATAKA HIGH COURT] dismissed the appeal filed by the Revenue and holding that assessment on RSP basis is not attracted. In the light of this decision, the learned Counsel for the appellant pleads for grant of stay and early hearing of the appeal. - appellant has made out a strong case in their favour for grant of stay. Accordingly, we grant waiver from pre-deposit of the dues adjudged against the appellant and stay recovery thereof during the pendency of the appeal - Stay granted. Issues:1. Whether the appellant is required to pay duty on cement bags supplied to the construction industry on Retail Sale Price (RSP) basis or on transaction value basis.Analysis:The appeal and stay application were filed against the Order-in-Original passed by the Commissioner of Central Excise & Service Tax, confirming an excise duty demand against the appellant, M/s Heidelberg Cement (India) Ltd., amounting to Rs. 4,32,10,317/- along with interest and a penalty. The key issue in this case revolved around the assessment of duty on cement bags supplied to the construction industry - whether it should be based on Retail Sale Price (RSP) or transaction value basis. Previous decisions by the Tribunal and the Hon'ble High Court of Karnataka were cited, emphasizing that the construction industry is considered a service industry, exempting the supply of cement from the declaration of RSP on packages. Consequently, the assessment of such cement would not fall under Section 4A of the Central Excise Act, 1944. Citing these precedents, the appellant sought a stay and early hearing of the appeal.The learned Commissioner (AR) representing the Revenue reiterated the findings of the adjudicating authority but requested time to present arguments on the merits of the case, focusing solely on the stay matter for the time being. After considering the facts, circumstances, and legal precedents, the Tribunal found that the appellant had presented a strong case in their favor for the grant of stay. Consequently, a waiver from pre-deposit of the dues adjudged against the appellant was granted, and recovery of the dues was stayed during the pendency of the appeal. Additionally, it was decided that the appeal would be tagged with another appeal at the time of the final hearing.In conclusion, the judgment by the Appellate Tribunal CESTAT Mumbai granted the appellant a waiver from pre-deposit of the confirmed dues and stayed the recovery during the appeal process, based on the interpretation that the supply of cement to the construction industry should not be assessed based on Retail Sale Price (RSP) but on other bases as per relevant legal precedents.