TaxTMI 
TaxTMI 
2009 (5) TMI 445
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....facturers of cement and during the relevant period cleared certain quantities of cement by paying duty at the concessional rate of Rs.400/- per MT along with applicable Higher Education Cess in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended by Notification No. 4/2007-C.E., dated 1-3-2007. It is the contention of the revenue that the conditions stipulated in the said Notification for availment of the said concessional rate of duty of Rs.400/- per MT, is not adhered to by the appellant and hence, they are liable to pay the differential duty. The Adjudicating Authority after considering oral and written submissions made by the appellant before him came to the conclusion that the clearance of cement in unit packages of 50 kg. ....
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....benefit of concessional rate of duty of Rs.400/- per MT in terms of Notification No. 4/2006-C.E., dated 1-3-2006 as amended. 5.1 The said Notification which falls for consideration is reproduced below. "In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods of the description specified in Column (3) of the Table below read with the relevant List appended hereto, as the case may be, and falling within the Chapter heading or sub-heading or tariff item of the First Schedule to the Central Excise Tariff Act, 1985 (5 of 1986) (hereinafter referred to as th....
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....tured in a mini cement plant, other than those cleared in packaged form; Rs.250 per tonne 1 1C 2523.29 All goods, whether or not manufactured in a mini cement plant, not covered in S. No. 1B, other than those cleared in packaged form; Rs.400 per tonne - Explanation.- For the purposes of S. Nos. 1, 1A, 1B and 1C- 1. 'mini cement plant' means - (i)a factory using vertical shaft kiln, with installed capacity not exceeding 300 tonnes per day or 99,000 tonnes per annum and the total clearances of cement product by the factory, in a financial year, shall not exceed 1,09,500 tonnes; or (ii)a factory using rotary kiln, with installed capacity not exceeding 900 tonnes per day or 2,97,000 tonnes per annum and the tota....
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.... the above reproduced Notification, we find that the appellant is claiming the benefit of Sl. No. 1C of the Notification. We find, that there is no dispute as regards the said clearances are made to institutional consumers by the appellant. The only contention that has been raised by the learned Commissioner is that under such institutional consumers, construction companies would not fall under the service industry and it is his interpretation that institutional consumers would be merely airways, railways, etc. We are not inclined to accept this proposition of the learned Commissioner. Construction activity has been considered as a service industry by the Finance Ministry itself, which is obvious as there is imposition of Service Tax on the....
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.... & Customs under Circular No. 625/16/2002, dated 28-2-2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned Counsel for the appellants has also relied on several decisions of the Tribunal - Bharti Systel Ltd. v. CCE [2002 (145) E.L.T. 626 (T) = 2002 (51) RLT 649]. CCE v. Trishul Research Lab. Pvt. Ltd. [2002 (145) E.L.T. J204], Goa Bottling Co. Ltd. v. CCE [2001 (128) E.L.T. 81 (LB) and H & R Johnson (India) Ltd. v. CBEC [2002 (144) E.L.T. 506 (Kar.)]. 4. We have perused the records and considered the submissions made by both sides. We find merit in the submissions made on behalf of the appellant. Marking on the goods prominently stated that t....