TaxTMI 
TaxTMI 
2024 (1) TMI 818
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....ther than cleared in packaged form, falling under Chapter Heading 2523 29 has been fixed at Rs.400 per MT. The appellant had cleared the cement in 50 kg. bags without printing Retail Sale Price on the bags as required. The rate of duty as per the Tariff is Rs.600 per MT which is applicable for packed cement on which it is affixed with R.S.P exceeding Rs.250/- per Kg bag, which has to be adopted for all such clearances of cement made by the appellant for self-use / industrial / institutional consumers. The department was of the view that appellant ought to have affixed RSP on the 50 kg. bags cement and is not eligible for exemption. The appellant was issued show cause notices for different periods from December 2007 to June 2017 alleging that they have wrongly availed the exemption under Sl.No.1C of Notification No.4/2006-CE dt. 1.3.2006 as amended. According to appellant, they had availed the concessional rate of duty for the reason that the cement supplied to industrial / institutional consumers in 50 kg. bags is eligible for exemption as per provision contained in the third proviso to Explanation (2) appended to Sl.No.1C of Notification No.4/2007-CE dated 1.3.2007, as further ame....
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.... Rules, 1997] with some exceptions. In terms of the third proviso to Explanation (2) appended to Sl.No.1C of Notification No.4/2007-CE dt. 1.3.2007 which read as " provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and thus not declared, the duty shall be determined as is in the case of goods cleared in other packed forms". 3. It appeared to the Department that the above proviso is not applicable for the cement sold in bags upto 50 kgs. whether or not for industrial or institutional consumers under Rule 2A of the SWM (PC) Rules, 1977 which is reproduced below: "Chapter - II Provisions applicable to packages intended for retail sale Rule 2A - Applicability of the Chapter The provisions of this Chapter shall not apply to (a) Packages of commodities containing quantity of more than 25 kg or 25 Litres excluding Cement and Fertilizer sold in bags upto 50 Kg; and (b) packed commodities meant for Industrial consumers and Institutional consumers. Explanation : For the purpose of this Rule - (a) Institutional Consumer - Means those consumers who buy pack....
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....7.11.2019 which has been accepted by the department. Accordingly, 18 SCNs kept in call book were taken up for adjudication. The adjudication of all 18 SCNs culminated in passing the order impugned herein by which the original authority granted relief to the appellant by dropping the demand in respect of clearances for self-use (SCN No.2/2009 dt. 5.1.2009). However, the demand in respect of clearances for industrial and institutional consumers was confirmed along with interest. The proposal in SCN to impose penalties was also dropped. Aggrieved by such order, the appellant is now before the Tribunal. 7. The details of the show cause notice and the period involved are tabulated below : S. No. SCN / SOD No. File C No. Amount involved 1 SCN No.02/2009 dt. 05.01.2009 December, 2007 to January 2008 V/15/25/01/2009- C.Ex. Adj. III Rs.36,67,079/- 2 SCN No.17/2009 dt. 13.02.2009 February, 2008 to April 2008 V/15/25/15/2009- C.Ex. Adj. III Rs.40,64,113/- 3 SCN No.47/2009 dt. 02.06.2009 May, 2008 to July 2008 V/15/25/48/2009-C.Ex. Adj. III Rs.39,68,187/- 4 SCN No.65/2009 dt. 03.09.2009 August 2008 to June, 2009 V/15/25/89/2009-C.Ex. Adj. III Rs.2,06,89,369/- 5 SCN N....
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.... the matter. The Appellant is given to understand from the Impugned Order that the SCNs were issued as a protective measure and that the notices had been transferred to the call book. The Appellant was never put to notice of the fact that the demands in the SCNs were transferred to the call book. 8.3 A personal hearing was conducted for adjudicating these SCNs on 30.08.2021. The Appellant was directed to submit evidence to prove that the clearances were indeed made to institutional/industrial consumers, a fact which was not raked up in any of the SCNs. The SCNs culminated in the impugned order wherein the demand of INR 24,01,77,638/- was confirmed along with interest under Section 11AB of Central Excise Act 1944. 8.4 In paragraph 16, the impugned Order has set aside the demand raised in respect of clearances made for own use by relying on the Order dated 27.11.2019 issued by the Hon'ble Apex Court in CCE vs. Madras Cements 2020 (371) E.L.T. A42 (S.C.). Further, the SCNs had proposed penalty under Rule 25 of the Central Excise Rules 2002, which was dropped in the Impugned order. As on date, there is no revenue appeal filed against these findings in the impugned order and hence the....
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....0 (12) TMI 504 - CESTAT NEW DELHI. A.5. In any case, it is submitted that the clearances made by the Appellant satisfies both the conditions as the cement is packed in bags of 50kg and sold to institutional and industrial consumers. Since both the conditions are cumulatively satisfied the question of invoking the 1977 Rules does not arise. B. The SCNs are vague and are liable to be set aside on this sole ground alone. B.1. It is submitted that where the sale was undertaken by the Appellant in loose or through retail sale by affixing RSP there is no dispute. Further the demand with respect to cement cleared in 50 kg bags for self-use has also been dropped in the impugned order. The SCNs only alleged that cement in 50kg bags were cleared without affixing RSP to institutional/ industrial consumers and that the exemption was applicable only to cement cleared in bags of 50 Kgs. B.2. It is submitted that the entire demand is based on a mere misapprehension that one of the conditions is not satisfied - namely, that the cement was cleared in bags of 50Kgs, whereas the exemption in the 1977 Rules and the 2011 Rules was for cement cleared in bags above 50 Kgs. However, this is incorrect.....
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....ompanies, construction companies and industrial / institutional consumers. Reliance is placed on the following decisions wherein it was held that the benefit of SI. No.1C of Notification No. 4/2006-CE would be available for clearance of cement made to institutional consumers in 50 kgs bags: i. Prism Cement Ltd. Vs. CCE 2017 (357) ELT 1003 (T.) ii. Diamond Cement Vs. CCE 2017 (352) ELT 177 (T.) iii. Dalmia Cements (Bharat) Ltd. Vs. CCE 2018 (361) ELT 917 (T.) The above decisions were affirmed by Hon'ble Apex court in Commissioner v. Madras Cements Ltd 2020 (371) ELT A42 (S.C.) C.3. The Appellant submits that where the transaction does not qualify to be a 'retail sale' as defined under PC Rules, there was no requirement to affix MRP. In this regard, reliance is placed on the following decisions of CESTAT. i. Diamond Cement vs. CCE - 2017 (352) ELT 177 (T.) Affirmed by Supreme Court in CCE vs. Madras Cements Ltd. - 2020 (371) ELT A42 (S.C.) ii. UltraTech Cement Ltd. vs. CCE - 2018 (8) TMI 458 - CESTAT AHMEDABAD C.4. In view of the above, it is submitted that there was no statutory requirement for the appellants to declare MRP on cement bags of 50 kg. Therefore, the ground....
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....gs after a long period would cause serious prejudice to the parties and such proceedings are barred by limitation and is unjustifiable. As on date, no revenue appeal has been filed against the Order dated 22.11.2023. D.4. Further Reliance is placed on paragraphs 18, 22, 23 of the decision in Steel Authority of India Limited vs Office of Assistant Commissioner - 2022 (11) TMI 1393- Madras High Court wherein the Hon'ble High Court held that the adjudication of a notice cannot be protracted endlessly for a period of 21 years by relying on the phrase 'where it is possible to do so' in Section 11A (11) of the Excise Act. The Revenue has filed Writ Appeals Nos. 1369,1371,1373,1377,1379 and 1380 which are pending before the Division Bench of the Hon'ble High Court of Madras as on date. However, no stay operates against the Order of the Ld. Single Judge cited above and hence the findings have attained finality. The Appellant was not put to notice of the SCNs being placed in the Callbook. D.5. The Appellant had duly filed their replies to the SCNs in a prompt manner, adducing all relevant evidence. When no personal hearing was conducted and when no orders were issued, the Appellant belie....
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....NN 12/2012-C.E. It is prayed that the appeal may be allowed. 9. Ld. A.R Shri M. Ambe appeared and argued for the Department. The show cause notice dated 5.1.2009 was adverted to by the Ld. A.R to submit that as per Rule 2A of the SWM (PC) Rules, 1977 both the conditions have to be satisfied to be eligible for the concession at Sl.No.1C of Notification No.4/2006. In para-9 of SCN, it is specifically alleged that the appellant failed to affix retail price on the cement bags weighing 50 kgs. 10. In para-10, it has been specifically alleged that even though it is contended by the appellant that they have cleared goods for industrial / institutional consumers it is not known to the department as to whether the buyers are institutional or industrial consumers. At the time of adjudication, the appellant did not produce evidences as to whether buyers are industrial or institutional consumers. The original authority has therefore correctly confirmed the demand observing that the appellant has failed to produce necessary documents to prove that the cement was supplied to industrial / institutional consumers. 11. The matter was kept in the call book only because the appeal was pending befo....
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....e relevant part of discussions of the Tribunal in Grasim Industries is as under : "2. The learned Commissioner has demanded duty of over Rs. 2.8 crores from the appellants in respect of cement cleared in 50 Kg. packs to Govt. companies, construction companies and other industrial/institutional consumers during the period May 2007 to February 2008 by denying them the benefit of Notification No. 4/2006-C.E., dated 1-3-2006 (Sl. No. 1C). The learned Commissioner has also imposed equal amount of penalty on them. The Notification, at SI. No. IC thereof, prescribed Rs. 400 per tonne as the rate of duty of excise for goods falling under SH 2523 29 of the CETA Schedule, not covered under Sl. No. 1B, other than those cleared in packaged form. Admittedly, the appellant's cement plant is not a 'mini cement plant' defined under the Explanation to Sl. No. 1C of the Notification and consequently the subject goods were not covered under Sl. No. 1B of the Notification. The Second Proviso to the Explanation reads thus :- "Provided also that where the retail sale price of the goods are not required to be declared under the Standards of Weights and Measures (Packaged Commodities) Rules, 1977, and....
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....er is liable to be set aside. The Board's clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee's case in view of the clarification issued by the CBEC, which is to the effect that no RSP requires to be printed on the goods sold to 'industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under Sl. No. 1B or 1C of Notification No. 4/2006-C.E. by virtue of the Second Proviso to the Explanation to Sl. No. 1C of the Notification as amended. The Board's clarification squarely covers the case in favour of the assessee. 5. In the result, the benefit of the Notification would be admissible to the assessee and the impugned demand is liable to be vacated. The appeal is allowed. The stay application also gets disposed of accordingly." 14. After the aforesaid judgment of the Hon'ble Apex Court the 17 show cause notices were taken up for adjudication. As mentioned above, the adjudicating authority though took note of the decision of the Hon'ble Supreme Court has thereafter confirmed the demand on the ground that appellan....
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....t bags/packages containing 50 kgs. of cement without affixing / printing the Retail Sale Price on packages i.e. in the packages containing 50 kgs. of cement, it is mentioned as "NOT FOR RETAIL SALE, MEANT FOR INDUSTRIAL COSUMER / INSTUTIONTAL CONSUMER /SELF RMC CONSUMPTION". As per Rule 2A ibid, cement and fertilizers sold in bags upto 50 kgs. are excluded from the applicability of the Chapter and hence, the cement bags cleared in 50 kgs without affixing Retail Sale Price by the assessee is not eligible for concessional rate of duty because the provisions of Rule 2A(a) and (b) are to be read together and not in isolation in view of the word "and" I between (a) and (b) of Rule 2A though the packages cleared by the assessee are meant for industrial and institutional consumer, in other words, both the conditions of (a) and (b) under Rule 2A are to be fulfilled by the assessee for claiming exemption from declaration / affixing of Retail Sale price on the packages. 10. Further, it appears that the assesses have cleared packed cement in bags of 50 kgs. each for own use within the factory premises for various civil work undertaken by them. The said clearance does not fall under the scop....
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....l or institutional consumer". However, the show cause notice which has been issued after verification of returns / records and accounts of the assessee does not allege anywhere that any such bags which are cleared with the remark affixed "not for retail sale, meant for industrial consumer/institutional consumer/self R.S.P consumption" has been cleared in retail sale. The SCN does not mention about even a single instance of clearances made to retail sale, or any averment as to what is the basis of such averment. The department has to furnish the details of the allegation and basis of the demand of duty in the show cause. Without such details, the appellant will not be able to put forward their defence in a proper manner. If the department had mentioned any particular transaction(s) or invoice(s) for doubting that such bags have been cleared for retail sale, it would have enabled the appellant to clarify in their reply as to whether such sales are made or invoices issued. The SCN should contain sufficient information to facilitate in giving a reply / defence and also for understanding the dispute at the time of adjudication. The adjudication cannot be founded on an incomplete or insi....
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.... conditions in Rule 2A has to be read conjunctly or disjunctively was discussed. Relevant para of the order reads as under : "5.6 In the Grasim Industries case (supra), this issue was specifically examined by this Tribunal and it was held as follows :- "As rightly pointed out by the learned Counsel, as the benefit offered under the Notification pertains to goods cleared to industrial/institutional consumers and as this aspect was overlooked by the Legal Metrology expert as also by the learned Commissioner, the impugned order is liable to be set aside. The Board's clarification on the relevant question was wrongly by-passed by the adjudicating authority. We have found favour with the assessee's case in view of the clarification issued by the C.B.E. & C., which is to the effect that no RSP requires to be printed on the goods sold to 'industrial/institutional consumers as defined under the rules framed under the Standards of Weights and Measures Act and that such goods would be covered under SI. No. 1B or 1C of Notification No. 4/2006-C.E., by virtue of the Second Proviso to the Explanation to SI. No. 1C of the Notification as amended. The Board's clarification squarely covers the....