TaxTMI 
TaxTMI 
2019 (2) TMI 1258
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....tion under Notification No. 04/2006-CE dated 01.03.2006 as amended, claiming one of the concessional rates provided in the following Clauses of the Notification : • 1A(i) : cement whose retail price does not exceed Rs. 190 per 50 kg bag; • 1A(ii) : cement whose retail price exceeds Rs. 190 per 50 kg bag; • 1C : cement whether or not manufactured in a mini-cement plant not covered in Sl. No. 1B, other than those cleared in packaged form. The concerned Bills-of-Entry were assessed and the goods cleared by extending the concessional rates of duty for CVD as claimed. All these imports took place during the period from 01/2009 to 12/2011. 2.2 From investigations carried out subsequently, it appeared to the Department that cement imported were in 50 kg bags. They were capable of being sold to other buyers also in the retail market. Hence, importers cannot claim any concession under Clause 1C of the said Notification in as much as they were neither industrial nor institutional consumers. Further, imported cement has not been sold to institutional or industrial consumers directly in bulk packings without MRP being marked on them, but in retail m....
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....  1C  TR 7. M/s. Aathees Hard Floorings Govt. Contractor & Manufacturer C/40691/2016 01/2009 to 12/2011 03.03.2014 2,34,217/- 2,34,217/- No RF imposed as goods not available for confiscation  1A(i)  1A(ii)  1C 8. M/s. PRP Export Manufacturer C/40716/2016 01/2009 to 12/2011 05.02.2014 29,63,881/- 29,63,881/- No RF imposed as goods not available for confiscation  1A(i)  1A(ii)  1C  TR 9. M/s. Al Kabir Impex Services, CHA C/4172/2016 01/2009 to 12/2011 27.02.2014 - 10,000/- No RF imposed as goods not available for confiscation  1A(i)  1A(ii)  1C 10. M/s. Madhucon Projects Ltd., Trader C/40684/2015 01/2009 to 12/2011 25.09.2013 42,12,818/- 42,12,818/- 67,00,000/-  1A(i)  1A(ii)  1C 3.1 When the matter came up for hearing, Ld. Advocates/Counsel, namely, Shri. N. Viswanathan, Shri. R. Muraleedharan, Shri. G. Derrick Sam and Shri. A.K. Jayaraj, represented the appellants and contentions put....
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....ement of the Bombay High Court and holding that requirement of Rule 6 of the Standards of Weights and Measures (Packaged Commodity) Rules is not required to be complied with by a manufacturer selling packaged goods to industrial/institutional consumers through stockist also supports the case of the appellants; (ix) It is submitted at the outset that almost all the importers involved have admittedly not sold the goods in the retail market and have either used the cement by themselves (four of the appellants) or sold only to institutional and industrial consumers rendering the very investigation and issue of the notice to them faulty; (x) The adjudicating authority though relied upon the provisions contained in the Central Excise (Determination of the Retail Sale Price of Excisable Goods) Rules, 2008 strictly do not apply to these cases since the Portland Cement is not an item notified under Section 4A of the Act; the authorities have not complied with the requirement of the rules framed therein by either undertaking the market enquiry to ascertain the retail price of the goods sold by each of the importers or determine the retail price of such goods if in case the MRP is said ....
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.... position, the issue of the notice for confiscation of the goods, is itself not maintainable without the Revenue reviewing the Order passed under Section 47 of the Act as has been held by the Tribunal in the case of M/s. Décor India approved by the Hon'ble Supreme Court of India as reported in 1997 (94) E.L.T. A51 (S.C.); (xvi) At the time of importation, all the relevant documents and declaration including invoices issued by the exporters were submitted for assessment. The Assessing Officer has gone through and accepted the declaration and documents and have allowed the import of the cement on payment of duty at the rate mentioned in Clause 1A(i), 1A(ii) or 1C as per his discretion and powers, and assessed the bills after going through the relevant documents filed. The impugned Order cannot be said to be nullified for resorting the review mechanism, since the goods are assessed by the Officer and not self-assessed by the importer. Judgement of the Hon'ble Supreme Court in the case of Collector Vs. M/s. Décor Industries Reported in 1997 (94) E.L.T. A51 (S.C.) supports the above contention. Moreover, when the impugned Order recorded that the import of cement was RSP....
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....hat landed cost seems to be more than RSP. Importer is not an industrial consumer but in reality, he is an industrial consumer only. 7. M/s. Aathees Hard Floorings C/40691/2016 Goods used for construction of Government contract. Demand made based on sale price of M/s. Antony Metals - cement consumed for their own use and not sold in retail, admitted in Order-in-Original. Benefit denied since importer is not an industrial consumer. Determination of RSP Rules, 2008 wrongly applied. 8. M/s. PRP Export C/40716/2016 Goods used for construction of Government contract. Demand made based on sale price of M/s. Antony Metals - cement consumed for construction of their own factory and not sold in retail. Benefit denied since importer is not an industrial consumer. RSP of cement imported is less than the cost of import, both by original authority and adjudicating authority. 3.3 In respect of Appeal No. C/40684/2015-DB, the following additional submissions pertaining to that case were made by Ld. Counsel Shri. A.K. Jayaraj : a) The imports were made from actual manufacturer in Pakistan. The transaction is through High Sea Sales. The Bill of Lading, manufacturer inv....
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....nd the same was detected only by subsequent investigation, the action of issuing Show Cause Notices pursuant to assessment is perfectly in order. 5. Heard both sides and have gone through the facts. 6. The issue that comes up for resolution in all these cases is whether the initiation of proceedings by the Revenue to deny the benefit of Notification No. 04/2006-CE will pass the test of law or not. 7. From the facts on record, what is not disputed is that in all these cases the Bills-of-Entry filed by the appellants herein, claiming various Clauses of Notification No. 04/2006-CE for concessional rate of CVD, were assessed and allowed clearance for home consumption. At this stage, we find merit in one of the contentions of the Ld. Counsel that the concept of self-assessment of Customs Duty inter alia in respect of imported goods by the importer came into effect only by the Finance Act, 2011 with effect from 08.04.2011. The new Section 17 of the Customs Act, 1962 which came to be introduced with effect from 08.04.2011 provided for self-assessment of duty on imported goods by the importer himself. As per the clarifications given in Board Circular No. 17/2011-Cus. dated 08.04.2....
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....ds are sold directly to the above-mentioned entities, then the assessee-appellants claimed that the MRP based exemption should be provided and they are entitled to avail the concessional rate of duty. 3. In the impugned order, the concessional rate of duty under Serial No. 1C of the Notification No. 4/2007-C.E., dated 1-3-2007 for clearances of packaged cement made by the parties to the institutional and industrial consumers was allowed, but the same was not allowed to the individuals. Hence, both the parties have filed the cross appeals. 4. With this background, we have heard Ms. Pinky Arora, learned counsel for the assessee-appellants and Shri Yogesh Agarwal, learned DR for the Department. 5. After hearing both sides and on perusal of the record, it appears that the assessee-appellants have sold the goods directly to the consumer which includes the Government agencies, builders, institutions and individuals without involving a retail sale agency or other institutions, and has, therefore, not fulfilled the criteria of "retail sale". Hence, the definition of "Retail Sale" as per Rule 2(q) of Standards of Weights and Measures (Packaged Commodities) Rules, 1977 will not appl....