Date of Order: 20.10.2022

Key Pointers:

• The Appellant, M/s Ultratech Cement Ltd., and Revenue both have filed the present appeals against Order-in-Original dated 28.11.2013 passed by the Commissioner of Customs & Central Excise, Surat.
• The issue is whether sale to individual customers would not be eligible for benefits of concessional rate of excise duty under Notification No. 04/2006- CE dated 01.03.2006 as amended and /or Sr. No. 52 of Notification No. 12/2012-CE dated 17.03.2012. 
• The authorities observed that demand was confirmed in respect of the clearance of the Cement in 50 Kgs bags to individual consumers. The submission of the appellant is that since the said clearance is made directly by the appellant to the individual consumers, there is no intermediary involved such as distributor/dealer etc. and the goods were not sold through a Retail Sale Shop Agency or any other instrumentality, therefore, such clearances is not covered under retail sale, accordingly, there is no need of a fixing retail sale price on the packages in terms of the legal metrology  (Packaged Commodities) Rules, 2011.
• Further, the Tribunal noted that the demands in respect of clearances made to only individual customers were confirmed against which no appeal was filed. Moreover, in all the judgments up to Supreme Court on the issue in hand it has been decided that the assessee is eligible for exemption Notification No. 4/2006-C.E in respect of clearances made to institutional consumer or industrial consumers, however, in none of the case any benefit was extended to assessee in respect of the clearances made to the individual customers, therefore, merely because the goods were sold by the appellant directly to the individual customer.
• Hence, the Tribunal held that Appellant Company would not be eligible for exemption Notification No. 4/2006-C.E. Accordingly, the demand of Rs. 3,11,188/-  was upheld but penalty not leviable.