ORDER
C.N.B. Nair, Member (T)
1. The appellants are a manufacturer of White Cement. They pack that cement in 1 kg., 5kg., 10 kg., 25 kg. and 50 kg. packings. The cement so packed was sold to stockiest/wholesale dealers for ultimate sale in retail to customers. The appellant also sold 50 kg white cement packets to builders for use in civil construction. The 50 kg packings meant for builders were marked so prominently. The marking read – “Speially Packed For Builders” “Not For Retail Sale”. A sample of the packing produced during hearing is photocopied below:
2. White cement is one of the items specified under Section 4A of the central Excise act. 1944. Goods so specified are liable to be valued for central excise duty based on the retail price marked on the packings. The appellants valued consignments sold to stockiests/dealers for retail sale under Section 4A and valued the consignments sold to builders under Section 4 and paid duty on that basis. Under the orders impugned in the present appeals, Revenue authorities have taken a view that consignments sold to builders were also liable to be valued in terms of Section 4A of the Central Excise Act. That too, at the MRP marked on the 50 kg packing intended for retail sale and not the lower MRP marked on the packages in question. Consequent to such valuation, differential duty demands have been made and penalties imposed. The present appeals challenge such valuation.
3. The appellant’s contention is that goods for servicing an industry remain exempt from the requirement of Packaged Commodities Rule under Rule 34 of those Rules and that white cement co**** sold to builders were thus exempt. It is also emphasised that cement packets meant for builders were not for sale in retail. They have also relied on the fact that the packets in question were *** as goods “Not for retail sale”. The appellants have also relied on the clarification issued by the Central Board of Excise & Customs under Circular No.625/16/2002 dated 28.2.2002 wherein it was clarified that goods sold in bulk at contracted price are to be assessed under Section 4. During the hearing of the case, learned Counsel for the appellants has also relied on several decisions of the Tribunal – Bharti Systel Ltd. vs C.C.E.- 2002 (51) rlt 649, C.C.E. vs. Trishul Research Lab Pvt. Ltd. – 2002(144) ELT 204, Goa Bottling Co. Ltd. vs. C.C.E. – 2001 (128) ELT 81(LB) and H & R Johnson (India) ltd. vs. CBEC – 2002 (144) ELT 506(Kar).
4. we have perused the records and considered the submissions made by both sides. We find merit in the submissions made on behalf of the appellant. Marking on the goods prominently stated that the goods were “specially packed for builders”. Thus, the goods were intended for a particular industry and thus, remained excluded under Rule 34 of the packaged Commodities Rules. The Commissioner (Appeals) has rejected the claim of the appellant on the ground that construction is not an industry. This view is not correct. Construction is treated as an industry under the various statutes and it, in fact, is one of the biggest industries in any country. Appellant’s case is also covered by the Circular of the Board dated 28.2.2002 inasmuch as the clearances were in bulk at contracted prices. The issue also remains covered in favour of the appellant by the decision of this Tribunal in the case of Bharti Systel Ltd. vs. C.C.E. (supra). In these circumstances, the original duty payments were correctly made and no short-levy remained to be recovered. Proceedings before the lowerauthorities which found to the contrary are not sustainable.
5. In the view we have taken above, the appeals succeed and are allowed after setting aside the impugned order.