2017 (10) TMI 397 - AT - Central Excise

Tribunal upholds ruling for cement manufacturers on concessional duty eligibility under Notification No.4/2007-CE

Commissioner of Central Excise, Trichy Versus M/s. Tamilnadu Cement Corporation Ltd.

The Tribunal upheld the Commissioner (Appeals) decision, ruling in favor of the respondents, cement manufacturers, regarding their eligibility for ... Refund claim - Cement cleared to industrial or institutional consumers - N/N. 4/2007-CE dated 1.3.2007 - Department was of the view that the respondents are not eligible for the concessional duty and therefore are not entitled for refund of any amount - Held that: - the cement was cleared by the respondents to M/s. Tamilnadu Electricity Board for their own use and not for resale. So also the quantity was not more than 50 kilograms. The issue whether such clearance to institutions/ industrial consumers, the benefit of exemption under Sl. No. 1C of N/N. 4/2006-CE would be eligible has been analysed and discussed in the case of Grasim Industries Ltd. [2008 (10) TMI 462 - CESTAT, CHENNAI], where it was held that such goods would be covered under Sl. No. 1B or 1C of N/N. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended - refund allowed - appeal dismissed - decided against Revenue. Issues:Refund claims eligibility under Notification No.4/2007-CE for cement manufacturers cleared to industrial or institutional consumers.Analysis:The case involved the respondents, cement manufacturers, filing refund claims for the period from May 2007 to October 2007, claiming eligibility for concessional duty under Sl. No. 1C of Notification No.4/2007-CE when cement is cleared to industrial or institutional consumers. The department rejected the claims, leading to an appeal before the Commissioner (Appeals), who ruled in favor of the respondents, directing verification of unjust enrichment. The department then appealed to the Tribunal.On behalf of the Revenue, it was argued that the Commissioner (Appeals) erred in relying on the Tribunal's decision in the case of M/s. Grasim Industries Ltd. vs. Commissioner of Central Excise, which was under appeal before the Supreme Court without a stay. The respondent's counsel contended that the decision in Grasim Industries Ltd. and a similar view by the Mumbai Bench in Heldelberg Cement (India) Ltd. supported the respondents' eligibility.The Tribunal examined the case, noting that the cement was cleared to Tamilnadu Electricity Board for their own use, not resale, and in quantities not exceeding 50 kilograms. The issue of eligibility for exemption under Sl. No. 1C of Notification No.4/2006-CE for such clearances to industrial or institutional consumers was analyzed in prior decisions. The Tribunal referenced the provisions of the Legal Metrology (Packaged Commodities) Rules and the relevant definitions of institutional and industrial consumers.The Tribunal highlighted that the Rules exclude two categories: commodities over 25 kg (excluding cement) and packaged commodities for industrial or institutional consumers. It clarified the definitions of institutional and industrial consumers under the Rules. Citing the decision in Grasim Industries case, the Tribunal emphasized the benefit offered under the Notification for goods cleared to industrial/institutional consumers. It referenced other cases supporting the eligibility of cement cleared to industrial/institutional consumers for the benefit of Notification No. 4/2006.Ultimately, the Tribunal upheld the Commissioner (Appeals) decision, stating that the impugned order required no interference. The appeal by the department was deemed meritless and dismissed. The operative portion of the order was pronounced in open court, concluding the judgment.