2016 (10) TMI 949

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....d by the department vide Letter C.No.V/12/25/15/2007-P&l dated 16-11-2007 to pay @ Rs. 400/- per MT in lieu of Rs. 350/- per MT for the said supply of cement (c) that in compliance to the above directions, they had paid the differential duty of Rs. 50/- per MT UNDER PROTEST from 03/2007 onwards till date and they continued to pay at the above rate (d) that the Commissioner of Central Excise (Appeals) Hyderabad-III, has set aside the Order passed from this office confirming rate of duty to be paid for such cement supplies to M/s APSHC and confirmed the applicability of exemption as per above notification Viz. Rs. 350/- per MT and allowed the appeal with consequential relief to M/s Sagar Cements Ltd. and to M/s India Cements Ltd., their own u....

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....reproduced hereunder for ready reference: "retail sale", in relation to a commodity, means the sale, distribution or delivery of such commodity through retail sale agencies or other instrumentalities for consumption by an individual or a group of individuals or any other consumer. 3.3 In the instant case, the sale was made by the assessee directly to M/s APSHCL and there are no intermediaries involved in the sale  and hence the subject sale cannot be treated as a "retail sale"  3.4 In view of the above, the subject sale rightly falls under the categories mentioned in the said CBEC's clarification and therefore, the assessee is not required to mention the RSP and hence they will be covered under S.No.1C of the Notification ....

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...., "retail sale price" means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges; commission payable to dealers, and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price so printed is the sole consideration for the sale. In the instant case, as seen from the case records, the Appellants have entered into an agreement with M/s. Andhra Pradesh State Housing Corporation Ltd (APSHCL) for supply of cement packed in HDPE bags, weighing 50 Kgs where the price is an all inclusive one i.e. inclusive of cost of cement, all taxes, transportation, loading, unloading and stacki....

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....uestion. The proviso to the Notification only caters to a situation where the RSP is not required to be declared and thus not declared. Even the Board's Circular on which the lower authority has placed reliance only provides clarification on the price to be adopted when the retail sale price is not available. If a particular commodity is out of the purview of the SWMP Rules, 1977, then it is obvious that a manufacturer cannot be compelled to declare the RSP on the product and the proviso only provides for such a situation where the RSP is not declared. The Notification certainly does not bar the declaration of the RAP on the packages. The lower authority has clearly erred in the interpretation of the Notification. Here is a case where the c....