2017 (5) TMI 1191

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....gaged in the manufacture of ordinary Portland Cement falling under Chapter Heading No.2523 of First Schedule to Central Excise Tariff Act, 1985. ii) M/s SIL cleared cement in packed form (in 50 kg bags), inter alia, to various consumers like builders/developers, industrial manufacturers who used cement for construction or as raw material. The assessee-manufacturer claims that these buyers are covered by the definition of 'industrial consumer' or 'institutional consumer' under explanation to Rule 2A Standards of Weights & Measures (Packaged Commodities) Rules, 1977 and Rule 3(ii) of Packaged Commodities Rules, 2011. iii) The assessee-manufacturer M/s SIL claims that in terms of Rule 2A(b) of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977 and in terms of Rule 3(ii) of PC Rules in respect of packages of commodities meant for industrial consumers or institutional consumers, the requirement of declaring MRP on the packages is not applicable. On all such bags of cement cleared to the following category of buyers, the assessee did not declare MRP and specifically declared as Project Supply Not for Resale :- a) Social, religious and charitable ....

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.... dt.11.11.2009 and 14 Show Cause Notices issued for the period December 2008 to January 2010 were adjudicated by OIO No.37-50/Commr/2011, dt.31.03.2011. ix) Both the aforesaid impugned Orders-in-Original have confirmed the demand of differential duty on the goods sold to the following categories of buyers:- a) Social, religious and charitable organizations, b) Infrastructural development projects, c) Government bodies, and dropped the demand of duty on the goods sold to the remaining categories. x) The status of the demands raised in the Show Cause Notices pursuant to the aforesaid impugned Orders-in-Original dt.11.11.2009 and 31.03.2011 are as follows:- OIO No. Demand upheld Demand dropped Department appealed OIO No.23-29/ Commr/2009, dt.11.11.2009 Rs.5,06,37,480/- Rs.8,39,57,101/- No OIO No.37-50/ Commr/2011, dt.31.03.2011 Rs.11,29,12,698/- Rs.5,87,99,884/- Yes xi) To the extent that the demand of duty of Rs. 5,06,37,480/- was confirmed by the OIO dt.11.11.2009, the assessee M/s Sanghi Industries Ltd (M/s SIL) has filed Appeal No.E/237/2010. To the extent that the demand of duty of Rs. 11,29,12,698/- was confirmed by the OIO dt.31.03.2011, the assessee M....

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.... production etc and they will be industrial consumers. Considering these facts, we are of the view that this category of buyers appear to be rightly covered under the category of 'institutional consumer'. ii) Infrastructural development projects:- There cannot be two opinions that the buyers in this category would be covered under the category of 'institutional consumer'; as infrastructure development projects are integrally linked with the construction industry, which is in the category of a service industry. iii) Government bodies:- The facts on record mention that the bulk buyer here is Gujarat Government's GSCSCL (Gujarat State Civil Supply Corporation Ltd,) who is working as a nodal agency for procuring cement for supply to Government offices/Boards/Corporation for their development and infrastructure works as per the indent received from the concerned department. Such supplies to GSCSCL appear to be covered under the category of supplies to 'institutional consumers' as these are used for construction activity by such entities of Gujarat Government. 4.3 In case of other three categories of buyers (i) Builders, Developers, Contractors and Const....

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....clared, the duty shall be determined as is in the case of goods cleared in other than packaged from: Rs. 400 per tone 4. After careful consideration of the facts of the case and the submissions of both the sides, it appears that the issue is squarely covered by CESTAT decisions in the case of Grasim Industries Ltd Vs Commissioner of Central Excise, Trichi - 2008-TIOL-2328-CESTAT-Mad and Heidelberg Cement (India) Ltd and M/s Ultra Tech Cement Ltd Vs CCE Nagpur, Raigad - 2014-TIOL-1433 (CESTAT Mum). CESTAT Bombay in the case of Heidelberg Cement (India) Ltd and M/s Ultra Tech Cement Ltd (supra) in its Paras 5.4 and 5.6 observes as under:- 5.4 There is no dispute that the goods were sold by the appellant directly to the builders/developers/Ready Mix Concrete (RMC) manufacturers. RMC is an excisable product and therefore, the sale of cement for manufacture of RMC would definitely come within the category of sale to industrial consumers. As regards builders/developers etc., construction activity is a service activity as is well understood and there is also a Service Tax levy on construction activity. Therefore, sale to such builders/developers would certainly qualify as sale to inst....

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....ional consumers in 50 kg bags are eligible for the benefit of Notification No.4/2006 under Sr. No.1C. Thus it can be seen that this Tribunal as also the High Court have been consistently holding that institutional/industrial consumers are eligible for the benefit of Notification No.4/2006 and Notification No.12/2012. 4.1 As facts are similar to the facts of the decisions quoted above; therefore, following the decisions in the case of Grasim Industries Ltd (supra) and Heidelberg Cement (India) Ltd and M/s Ultra Tech Cement Ltd (supra), the appellant would be eligible for the benefit of Notification No.4/2006 under Sr.No.1C of the table annexed to it." 4.5 Further, the Tribunal in the case of M/s Prism Cement Ltd Vs CCE Bhopal (supra) observes as under:- "3. The applicability of concessional rate for the cement cleared to builders in construction industry and educational institution have been subject matter of decision by this Tribunal. In Heidelberg Cements (India) Ltd M/s Ultra Tech Cement Ltd Vs CCE, Nagpur, Raigad - 2014 TIOL-1433-CESTAT-MUM, the Tribunal held that any service institution would qualify as institutional consumer, builders, developers were held to be eligible ....