TaxTMI 
TaxTMI 
2017 (12) TMI 890
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....Horizontal Rotary Wet Kiln with a production capacity of 1200 MT of cement per day. The Licenced capacity of the unit is 7,00,000 MT per annum. They are using the brand name of ARASU for the manufacture of cement. With effect from 1.3.2007, they were paying Central Excise duty at the concessional rate of Rs. 220 / Rs. 145 per MT as per Notification No.4/2006-CE as amended. They were also paying Central Excise duty at Rs. 350 / Rs. 230 per MT for the cement manufactured from bought out clinker from their Ariyalur unit and availing cenvat credit for payment of duty. Further, on bulk quantity of cement cleared to their sister concern, they pay Excise Duty at Rs. 400/- per MT. Assessee vide letter dt. 27.01.2017 informed the Department that the....
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....ther SCN was issued on 17.7.2009 on the same grounds, inter alia proposing demand of differential duty of Rs. 2,09,62,255/- with interest liability etc. Both the SCNs were adjudicated vide the impugned OIO dt. 4.1.2010. 3. The adjudicating authority has arrived at the following conclusions : (i) The asessee unit is a mini-cement plant as already concluded in OIO No.07/2009 dated 06.10.2009 and they are eligible for the benefit of Notification No.04/2006 dated 01.03.2006 as a mini-cement plant. (ii) Use of brand name 'ARASU' does not prevent them from claiming concession under the Notification No.04/2006 dated 01.03.2006 as the brand name means merely Tamilnadu Government and is owned by the asessee. Further the ....
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....f the Notification No.4/2006 as amended during material period was 14% Advalorem or Rs. 400 per MT whichever is higher . However, the Commissioner has demanded both Rs. 400/ MT as well as at 14% advalorem the calculation of duty payable is not correct. It is contended that by adopting such double calculation, the Commissioner has demanded excess duty to the extent of Rs. 1,34,04,210/- despite actual amount payable being only Rs. 24,91,187/- i.e. Rs. 17,36,859 + Rs. 7,54,328, @ 14% for the value of Rs. 3539/- per MT comprising of both the show cause notices. (ii) Even if it is taken that no duty has been paid, Commissioner cannot demand beyond the amount of Rs. 1,27,18,525/-, namely Rs. 8,86,69,050 + Rs. 38,49,475 for both notices, ....
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....cate submitted that department's grievance against reduction in duty demand by the adjudicating authority does not have merit since such reduction has been extended only on well reasoned and justifiable grounds. 6. On the other hand, ld. A.R Shri K. Veerabhadra Reddy strongly opposed the assessee s appeals. In respect of department s appeals E/199&200/2010, he reiterated the grounds of appeal and summarized the same as under : (i) The assessee cleared cement in packaged form without affixing RSP to industrial / institutional buyers on payment of Central Excise Duty at the concessional rate of Rs. 220/MT and Rs. 350/MT, by wrongly availing exemption under Notification No.04/2006-CE dated 01.302.006. The exemption under the ab....
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....modities) Rules, 1977 and that MRP is required to be affixed on the said packages. (iv) It appeared that for these clearances duty is payable at the tariff Rate of Rs. 60/MT, as quantified and proposed to be demanded in work sheet No.2 of the respective SCNs. (v) In respect of the case law relied on by the assessee and the Commissioner M/s.Grasim Industries ltd., involving similar facts, the Department had preferred an appeal before the Hon'ble Supreme Court under Section 35L (b) against the Final order No.1169/2008 dated 20.10.2008 of CESTAT Chennai which set aside the OIO No.11/2008 dated 12.08.2008 of the Commissioner of Central Excise, Trichy (Ref. CA. No.D22236/2009). The decision in the above appeal is pending. ....