An exemption notification (Clause 1C) for industrial goods cannot be denied solely based on packaging or printed RSP if the actual intended use is for institutional/industrial consumption and no retail sale is proven by the revenue.

Per Mr. VASA SESHAGIRI RAO

The present appeal has been filed by M/s. Greatway Impex, Tuticorin (hereinafter referred to as “the appellant”), assailing the Order-in-Appeal No. 05/2017-TTN(CUS) dated 11.01.2017 passed by the Commissioner (Appeals-II), Tiruchirappalli (hereinafter referred to as “the impugned order”), whereby the appellate authority upheld Order-in-Original No.24/2016 dated 16.02.2016.

2. Briefly stated, the appellant imported Ordinary Portland Cement through Tuticorin Port during June–July 2010 under four Bills of Entry and claimed concessional CVD under Clause 1C of Notification No.04/2006-CE dated 01.03.2006. The department alleged that the cement imported in 50 kg bags with printed RSP was not eligible for the exemption and, by adopting contemporaneous RSP based on another importer, proposed reassessment under Clause 1A(ii), resulting in differential duty demand of Rs.1,72,769/- under Section 28(4) of the Customs Act, 1962 along with interest and penalty under Section 114A . The adjudicating authority confirmed the demand, interest and equivalent penalty vide Order-in-Original dated 16.02.2016, which came to be upheld by the Commissioner (Appeals) vide the impugned order, leading to the present appeal.

3. The Ld. Advocate Shri S. Shriram appearing for the appellant, submitted that the impugned order proceeds on erroneous interpretation of Notification No. 04/2006-CE and the packaged commodity provisions. It was contended that the imported cement was never intended for retail sale but was supplied only to industrial and institutional consumers engaged in construction activities and manufacture of hollow bricks and therefore qualified for exemption under Clause 1C. The learned counsel emphasized that the explanation appended to the notification itself excludes packaged commodities not intended for retail sale and that the department had failed to establish even a single instance of retail sale. It was further submitted that the imports had been assessed after scrutiny by the department and, prior to introduction of self-assessment under Section 17 with effect from 08.04.2011, the extended period under Section 28(4) could not have been invoked on allegations of suppression. Reliance was also placed upon Final Order Nos.40323-40332/2019 dated 19.02.2019 in Anthony Metals and 10 others and the subsequent decision of this Tribunal in M/s. Ramky Infrastructure Ltd. v. Commissioner of Customs , Tuticorin reported in 2026 (1) TMI 438 (CESTAT Chennai), wherein identical disputes involving imports of Pakistani cement through Tuticorin Port were decided in favour of the Appellants.

4. The Ld. Authorized Representative Shri Vineet Goyal reiterated the reasoning contained in the show cause notice, Order-in-Original and the impugned order.

5. We have carefully considered the rival submissions, perused the records of the case, the show cause notice, Order-in-Original and Appeal, the grounds of appeal and the judicial precedents cited by both sides. The issue arising for determination in the present appeal lies in a narrow compass, namely, whether the appellant was entitled to concessional CVD under Clause 1C of Notification No.04/2006-CE notwithstanding import of cement in 50 kg bags with printed RSP, and whether the consequential reassessment based on rejection of declared RSP, differential duty demand, interest and penalty by in