TaxTMI 
TaxTMI 
2025 (12) TMI 707
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.... in 50Kg bags to builders for their use in construction industry. Since builders are considered as institutional customers, the appellant did not print MRP on the cement bags in terms of the provisions of the Standards of Weights and Measures (Packaged Commodities) Rules, 1977 and declaring on each of the cement bags as "Not for Sale". They cleared these cement bags to builders/institutional consumers availing the benefit of the concessional rate of duty under Notification No. 4/2006-CE dated 01.03.2006 as amended. Alleging that sales to builders who are not institutional or industrial consumers, show-cause notice was issued to them for recovery of the differential duty of Rs. 16,26,880/- with interest and penalty. On adjudication, the demand was dropped by the adjudicating authority. Aggrieved by the said order, Revenue filed an appeal before the learned Commissioner (Appeals), who in, turn allowed the Revenue's appeal. Hence, the present appeal by the assessee. 3. At the outset, the learned Advocate for the appellant has submitted that the present issue relates to whether cement cleared in 50 Kgs bags to builders who are institutional buyers/industrial consumers is assessable ....
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....ul observation of the facts on record and the submissions of both the sides, it appears that there is no dispute that the assessee-manufacturer is clearing the goods viz. Cement to various bulk buyers in package form of 50 kg. bag with specific declaration on the bag 'Not for Resale' and goods are not meant for further retail sale therefrom; but are to be consumed by buyers for their own use. It has been claimed by the assessee that as per the provisions of Rule 2A(b) of the Standards of Weights & Measures (Packaged Commodities) Rules, 1977, the goods were cleared to the buyers which are covered under the category of industrial/institutional buyers mentioned at (a) and (b) of the explanation to Rule 2A of SWM Rules. The goods were cleared by paying duty @ Rs. 400 PMT for every consignment meant for 'institutional' and 'industrial' buyers. 4.1 Revenue's stand is that subject supplies/sales, though declared as 'Not for Resale' are not covered under Rule 2A of SWM Rules, therefore, concessional rate of duty as per Notification No. 4/2006-C.E. Sr. No. 1(b) or 1(c) will not be applicable to sales made to/for builders, developers, contractors and construction firms, manufacturer....
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....0-CESTAT, New Delhi = 2018 (360) E.L.T. 121 (T), Shree Cement Ltd. v. C.C.E., Jaipur - 2016 (12) TMI-25-CESTAT, New Delhi, Prism Cement Ltd. v. C.C.E., Bhopal - 2016 (10) TMI 828 CESTAT, New Delhi = 2017 (357) E.L.T. 1003 (T). In the decision of Shree Cement Ltd., reference has also been made to the decisions made in the cases of Jayanti Food Processing (P) Ltd. v. C.C.E., Rajasthan - 2007 (215) E.L.T. 327 (S.C.), Swan Sweets Pvt. Ltd. v. C.C.E., Rajkot - 2006 (198) E.L.T. 565 (Tri.-Mum.) as affirmed by Hon'ble Supreme Court in C.C.E., Rajkot v. Makson Confectionary Pvt. Ltd. - 2010 (259) E.L.T. 5 (S.C.). The CESTAT in the case of Ambuja Cements Ltd. v. C.C.E., Raipur - 2017 (1) TMI 1130 (supra) observes as follows :- "3. The brief facts are that the appellant is engaged in the manufacture of Cement and Clinker falling under Chapter Heading 2523 29 and was clearing the same, inter alia, to various buyers in 50 kg. bags. Such buyers included manufacturer of excisable items, construction service providers, Government Department and Charitable institutions/trusts. Some of the cement was also used for self-consumption and for quality control. During the period of dispute, Appe....
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....ce institution and since the builders/developers have not been specifically included and, therefore, such sale would not qualify as sale to institutional consumer is bereft of logic because only certain service providers have been specifically mentioned therein; others are covered by the expression 'like' and 'any other service institution' similar to those specifically mentioned. The institutional consumers mentioned are transportation, hotels and hospitals which do not form any particular class. Therefore, the principle of ejusdem generies will not apply. Any service institution would qualify as institutional consumers. 5.5 .... 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....
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....Ltd. v. C.C.E., Trichy - 2009 (238) E.L.T. 655 (Tri.-Che) relied on the Board clarification dated 12-6-2008 to hold that Government companies, construction companies and other industrial/institutional consumers were eligible for such concessional rate of duty. The Tribunal in appellant's own case vide Final Order No. 54122/2014, dated 13-10-2014 held that when there is no requirement to declaration the RSP on the package in terms of Packaged Commodities Rules, 1977 the goods should be treated as if cleared in other than packaged form and the concessional rate of duty in terms of Entry 1C should be eligible. The Tribunal was deciding the issue of RSP and the concession under the said Notification for exported cement. 4. We find that the original authority found that hospitals, cooperative societies, temples cannot be considered under the category of institutional or industrial consumers. We find the reasoning given by the original authority those schools, educational institutions and hospitals are not service industry in terms of Rule 2A of the Packaged Commodities Rules, 1977 is not tenable. The institutional consumer means those consumers who buy cement directly from the ....