M/S. LARSEN & TOUBRO LTD. ECC CONST.GRP. Vs. C.C.E, HYDERABAD
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 6930-6931 of 2005, Judgment Date: Oct 06, 2015
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 6930-6931 OF 2005
M/S. LARSEN & TOUBRO LTD. & ANOTHER ECC .....APPELLANT(S)
CONSTRUCTION GROUP
VERSUS
COMMISSIONER OF CENTRAL EXCISE, HYDERABAD .....RESPONDENT(S)
W I T H
CIVIL APPEAL NO. 2121 OF 2006
A N D
CIVIL APPEAL NO. 6138 OF 2008
J U D G M E N T
A.K. SIKRI, J.
In the first two appeals, i.e. Civil Appeal Nos. 6930-6931
of 2004, the assessee is M/s. Larsen & Toubro Limited (hereinafter referred
to as 'L&T'). Two appeals are filed by L&T assailing the orders dated
April 28, 2005 and October 24, 2005 passed by the Bangalore Bench of the
Customs, Excise & Service Tax Appellate Tribunal (for short, 'CESTAT')
whereby it held that L&T was not entitled to exemption on the goods known
as 'Ready Mix Concrete' (for short, 'RMC') under Notification No. 4/1997-CE
dated March 01, 1997 as the said Notification exempted 'Concrete Mix' (for
short, 'CM') and not RMC. In the other appeal, wherein the assessee/
respondent is M/s. Chief Engineer, Ranjit Sagar Dam (hereinafter referred
as 'Ranjit Sagar Dam'), the judgment impugned is that of the Punjab &
Haryana High Court taking a contrary view. Here, the High Court has held
that RMC manufactured at the assessee's plant would be entitled to
exemption inasmuch as the Notification exempts all kinds of CM from payment
of duty, which would include RMC as well
It is clear from the above that the issue which arises for consideration is
identical in all these appeals. For this reason, they were heard
analogously and are being disposed of by the present judgment. We shall,
in the first instance, take up the appeals of L&T.
CIVIL APPEAL NOS. 6930-6931/2005 AND CIVIL APPEAL NO. 2121/2006
L&T was constructing its own cement plant at Bhogasamundram, Anantpur. For
the purpose of the construction of civil structure of the said cement
plant, L&T required CM, it used to prepare said CM at site with the help of
machinery installed there and the said CM was captively consumed in the
construction of the said cement plant by L&T. L&T did not pay any central
excise duty on this product taking shelter under Notification No. 4/1997-CE
dated Mach 01, 1997, which exempted CM from payment of excise duty.
The Central Excise Officers visited the site and found that the L&T are
manufacturing ready mix concrete and not concrete mix. A show-cause notice
dated July 22, 1998 was issued by the Commissioner of Customs and Central
Excise, Hyderabad-II Commissionerate, proposing excise duty demand of
?1,97,47,626 along with interest, penalty and fine. L&T refuted the
aforesaid demand by filing its reply dated September 09, 1998 and
submitting that since concrete was prepared at the site and was consumed
captively at site, it had to be treated as CM and, therefore, was eligible
for exemption under the said Notification which exempted CM from payment of
any excise duty. This defence did not find favour with the Commissioner,
who passed Order-in-Original dated January 29, 2002 raising the demand in
the sum of ?81,39,326 with interest, penalty and fine.
In the Order-in-original, the Commissioner has stated that
ready mix concrete refers to a concrete specially made with precision and
of high standard and as per particular needs of a customer and delivered to
the customer at his site. According to him, the conventional site mixed
concrete lacks consistency in quality. He also noted that there are
advantages of having ready mix concrete over conventional site mixed
concrete, the way it is produced and delivered. On this reasoning, he
concluded that ready mix concrete as a product is different from concrete
mix. After taking into account the way L&T produced concrete mix by using
machinery at the site, he concluded that the product is ready mix concrete
and not concrete mix. He reasoned that what distinguishes ready mix
concrete from concrete mix is the manner in which it is manufactured, the
high degree of precision and stringent quality control over the mix of
ingredients.
Feeling aggrieved by this order, L&T preferred appeal before the CESTAT
with the plea that aforesaid reasoning of the Commissioner was faulty. It
was sought to be explained that having regard to the high quality of the
cement plant that was required, CM was prepared at site with the
application of sophisticated technique in order to achieve high standards
of quality. It was submitted that use of additives to increase the time
period over which the concrete can be used is not a decisive factor. Since
the L&T needed large quantities of ready mix concrete, they had put up a
plant for producing ready mix concrete at the site and therefore, there was
no need for use of retarders. It was also pleaded that the Commissioner
ignored the contention of L&T that the subject product was CM conforming to
the requirements of IS 456:1978. Rather, he relied on IS 4726:1976 for the
ready mix concrete and held that the product manufactured by L&T at the
site of construction is RMC.
L&T also referred to earlier proceedings by pointing out that the CBEC had
issued a Circular No.315/31/97-CX dated May 23, 1997, in which it was
clarified that RMC, even though it is manufactured at the site of
construction, is chargeable to excise duty under sub-heading No.3824.20 of
the Central Excise Tariff Act, 1985. The exemption for CM manufactured at
the site of construction for use in construction work at such site
available under Notification No.4/97-CE dated March 01, 1997 is not
applicable to RMC manufactured at the site of construction. L&T had
challenged this interpretation in the circular by filing a writ petition in
the High Court of Madras. Before the High Court, the Additional Central
Government standing counsel specifically took a stand that excise duty is
not leviable on RMC if it is manufactured at the site of construction. It
was, thus, argued that the Revenue was bound by the aforesaid concession
given in the Court.
The CESTAT, however, was not amused by these contentions of L&T. While
dismissing the appeal, the CESTAT distinguished between RMC and CM
explaining that the same were understood differently in trade and commerce.
It accepted the finding of the Commissioner that the manner in which the
product was manufactured by L&T, it was clearly RMC. It was pointed out
that the facility put up by L&T involved various machines coupled with
sophisticated process which was indicative of the fact that it was for the
manufacture of RMC and the only reason for manufacture thereof at site was
that the larger quantities of RMC which was required by L&T.
According to CESTAT, it is the high degree of precision and
stringent quality control observed in the selection and processing of
ingredients, namely, aggregates, cement, sand, additives and water, which
made the product as RMC in contra-distinction with CM. However, at the
same time, penalty under Section 11 A(c) of the Excise Act is reduced to
?10 lakhs and insofar as penalty under Rule 209A of the Excise Rules
imposed on the Construction Manager is concerned, the same is altogether
set aside. Likewise, fine in lieu of confiscation of the plant and
machinery is also reduced to ?10 lakhs. Levy of excise duty, however, is
maintained.
Before we advert to the submissions made by Mr. Sahu attacking the
aforesaid approach of the Tribunal, we deem it proper to refer to the legal
provisions:
Prior to March 01, 1997 'Concrete Mix' was classified under
Chapter 68 ---sub-heading 68.07 of the Central Excise Tariff Act as
applicable for the year 1996-1997. In terms of Notification No.8/96-CE
dated July 23, 1996, following goods specified in sub-heading 68.07 was
excisable to 'Nil' rate of duty as follows:-
(iii) Goods manufactured at the site of construction for use
in construction work at such site.
In terms of above no excise duty was payable for 'concrete mix'
manufactured at the site of construction for use in construction work at
such site.
Prior to the above notification, under the previous applicable
notification also i.e. Notification No.36/94-C.E. dated March 01, 1994
'Concrete Mix' manufactured at the site for use in construction work was
exempted from excise duty, i.e. all along the excise duty for 'concrete
mix' manufactured at the site remained 'NIL'
Prior to March 01, 1997 there was some doubt expressed as to
the excisability and classification of the product 'Ready Mix Concrete'.
The Trade was claiming classification of the product under heading 68.07
with benefit of exemption from central excise whereas the department stand
was that 'Ready Mix Concrete' was classifiable under sub-heading 38.23[1]
of the schedule of Central Excise Tariff Act as it stood prior to March 01,
1997.
It is clearly discernible from the above that the Legislature has treated
RMC and CM as two different products. Whereas CM has generally been
covered by the exemption notification, such an exemption is not extended to
RMC. Even when doubts were raised from time to time about the two
products, Government has always been clarifying and emphasizing that the
two products are different and RMC attracts excise duty and is not covered
by the exemption notification. The classification entries have also been
enacted accordingly. We may also mention at this stage itself that the
duty which was demanded from L&T by issuing show-cause notices cover the
period from May 02, 1996 to February 28, 1997 and from March 01, 1997 to
March 19, 1998.
Notification No.4/97-CE dated March 01, 1997 was issued under Section 5A(1)
of the Act exempting certain goods from payment of excise duty at Sl. No.51
Chapter 38 is covered and the description of goods mentioned therein reads
as follows:
“Concrete Mix manufactured at the site of construction for use in
construction work at such site.”
Another factual aspect which needs to be highlighted is the description of
RMC. In Circular dated August 12, 1996 issued by the Board, it is
explained that the Ready Mix Concrete plant consists of stone crushers,
conveyors, vibrator screen to segregate different sizes of stone
aggregates, and a sand mill to produce sand from stones. A central
batching plant is also installed in which all aggregates are weighed,
batched by electrical controls and limit switches. Cement from site is
carried to the batching plant by a screw conveyer operated with automatic
weighing gauges. Water is fed through flow meters after subjecting such
water to chemical analysis. The mixture of stone aggregates, sand, cement
and water is mixed in a mixer. The mixture so obtained is loaded on a
transit mixer mounted on truck chassis, which is transported to the site of
the customers and the same is discharged at site for use in further
construction of building etc. The qualities accruing to the Ready Mix
Concrete so obtained far out weigh to those of the site mixed concrete.
The final product Ready Mix Concrete is a material in plastic, wet process
state and not a finished product like blocks or precast tiles or beams.
This Circular further clarifies that RMC falls within the ambit of the
meaning of the word 'manufacture' as envisaged under Section 2(f) of the
Central Excise and Salt Act, 1944 as the product RMC is marketable, though
within the time frame of its short shelf life and it also satisfies the
test of being 'goods'.
We now proceed to take note of the arguments that were addressed at the
Bar. Mr. Sahu submitted that in the instant case demand of excise duty
from L&T on the footing that it has manufactured RMC at the site of
construction is not sustainable for various reasons. In support of this
plea, he paraphrased his submissions in the following manner:
(i) Product-wise, there is no difference between ready mix concrete and
concrete mix. This is clear from IS 456, industry standard for all types
of concrete mix and IS 4926 industry standard for ready mix concrete. IS
4926 refers to IS 456 for specifications on product ingredients and
manufacturing process. IS 4926 defines ready mix concrete as a concrete
mixed in a batching plant and delivered at the site of the purchaser for
use. This standard deals with management aspects of maintaining plant,
delivery process, interaction with customer, sampling and testing for
quality control, order processing and records. Thus, IS 4926 is concerned
with commercial aspects of industry practices of ready mix concrete, which
by definition is concrete mix manufactured at one place and delivered at
another place for use.
(ii) Since L&T was manufacturing concrete mix at the site for self-use in
construction of cement plant, it was not manufacturing ready mix concrete.
For this reason, CBEC in Circular dated January 06, 1998, has explained
that by its very nature, ready mix concrete cannot be manufactured at site.
This must be the logic on the basis of which, the Government counsel made
a concession before the Hon'ble Madras High Court (Larsen & Toubro Ltd. v.
Union of India[2] that ready mix concrete manufactured at site is not
taxable.
(iii) Traditionally, articles manufactured at the site of construction
have been exempted from excise duty with respect to goods manufactured at
the site of construction. A list of notifications showing such
uninterrupted exemption for articles of cement falling under CH 68,
articles of iron and steel falling CH 73 and concrete mix falling under CH
38 is enclosed. For this reason, and also the fact that the product-wise
there is no difference between ready mix concrete and concrete mix, this
Court in CCE, Belapur v. Simplex Infrastructure Ltd.[3] has held that ready
mix concrete produced at the site of construction is entitled to exemption.
(iv) Prior to March 01, 1996, this Court has upheld the position that
ready mix concrete was classifiable under CH 68.07. (Associated Cement Co.
Ltd. v. CCE, Mumbai[4]) upheld by this Court in CCE, Mumbai v. Associated
Cement Co. Ltd.[5] All goods manufactured under this heading at the site
for use in the construction at such site was all along exempt from duty.
From March 01, 1997, ready mix concrete has been inserted in CH 38.2420. If
ready mix concrete and concrete mix are two different things only ready mix
concrete was not taken to CH 38. Therefore, concrete mix (manufactured at
the site of construction) remained in CH 68.07 and was exempt under
Notification No.4/97-CE (Serial No. 68.2). Even otherwise, serial no. 51
of this notification exempts concrete mix falling under CH 38, if
manufactured at the site of construction.
(v) The distinction between ready mix concrete and concrete mix is similar
to that between garment and ready made garment. Another analogy is home-
made food and food ordered from restaurant for delivery at home. Concrete
mix manufactured at site is like home-made food, and food order from
restaurant for delivery at home is like ready mix concrete. Both are foods
ready for consumption, but the former get beneficial tax treatment.
(vi) Before the Commissioner, L&T had taken the following arguments, which
were not considered.
(a) CBEC in circular dated January 06, 1998 has classified that ready mix
concrete could not be manufactured at the site.
(b) Ready mix concrete is a type of concrete mix, which is manufactured at
one place and transported for delivery at the site of construction. This
is not the case with L&T.
(c) No sample has been drawn by the Department to find whether the goods
produced were ready mix concrete or concrete mix.
(d) The concrete mix produced at the site was used without delay, and had
no shelf-life. Hence, it was not excisable.
(e) The goods are classifiable under CH 68.07 in view of the ruling in
Associated Cement Co. Ltd. (supra). Hence, exempt under notification No.
4/97 (serial No.68.2). Alternatively, if classification is sought to be
made under CH 38, site mixed concrete was also exempt under this
notification.
From the aforesaid submissions of Mr. Sahu, it becomes apparent that basic
thrust of his argument is that CM and RMC are one and the same thing.
According to him, when Mixed Concrete is prepared at one place from where
it is packed and transported to some other place where the same is to be
used, that is known as RMC. On the other hand, if CM is prepared at the
site and is used there only, it remains CM. His argument was that it is
only when RMC is used at a place other than where it is prepared, the same
becomes exigible to excise duty and not when it is used at the site. For
this purpose, he referred to the following observations in the judgment
rendered by this Court in Commissioner of Central Excise, Belapur v.
Simplex Infrastructures Ltd.[6], which reads as under:
“3. As stated above, if RMC is produced at site, then alone the assessee
is entitled to exemption under the requisite Notification. We may state
that the word 'site' has not been defined in the Notification though it so
defined in the later Circular. We may also state that with the advancement
of technology, there could exist batching plants which are mobile.
Ultimately, the question which would arise for determination would depend
upon the facts of each case. In the present case, the Commissioner, as an
adjudicating authority, has held that cement concrete obtained at Pen and
Padghe sites conforms to the definition of RMC. However, according to the
Commissioner, the respondent-assessee has manufactured RMC during the above
period in the said places, namely, Pen and Padghe and, thereafter, they
have cleared the same to the construction sites of the customers/clients of
the assessee herein without payment of central excise duty and without
observing the central excise formalities.”
Mr. Yashank Adhyaru, learned senior counsel appearing for the Revenue while
rebutting the aforesaid arguments submitted that CM and RMC were two
different products which was clear from the Chapter Note entries itself.
He further submitted that it is the process by which concrete is mixed that
determines as to whether it is CM or RMC and consumption of the material at
site was irrelevant. According to him, the process of CM was somewhat
crude in contra-distinction to the sophisticated process by which RMC of a
comparatively very high quality is produced. Referring to the order of the
Tribunal, he pointed out that since in the instant case, high quality RMC
was required for the construction of the highly advanced quality cement
plant, that too in large quantity, in the process not only heavy machines
in the form of Stone Crushers, Conveyors, Vibrator Screens to segregate
different sizes of stone aggregates were used, there was addition of sand
mill to produce sand from stones and other sophisticated equipments were
also used for manufacture of RMC which are taken note of by the CESTAT and
these are:
(i) Stone Crushers, Conveyors, Vibrator Screens to segregate different
sizes of stone aggregates.
(ii) Sand mill to produce sand from stones.
(iii) Two batching plants in which all aggregates were weighed and batched
by electrical controls and limit switches.
(iv) Cement silo where cement is stored and carried to the batching plant
by a screw conveyor operated with automatic weighing gauges.
(v) Flow-meters to feed water after subjecting into chemical analysis.
(vi) Mixer to mix stone aggregates sand, cement and water.
(vii) Transit mixer mounted on a truck chassis for transporting the
concrete to the actual site of construction.
He, thus, argued that whether it was done at site or not was irrelevant.
He also submitted that the assessee itself accepts that what is produced is
RMC, which is different from CM, and the only reason for claiming exemption
from excise duty is that it is produced at site.
We have considered the aforesaid submissions of the learned counsel for the
parties.
We may point out at the outset that the case which is now sought to be set
up by the assessee, namely, CM and RMC are one and the same product, was
never the case of the assessee. On the contrary, in reply dated June 12,
1998 to the letter dated May 18, 1998 issued by the Assistant Commissioner
of Central Excise, Anantpur, the explanation given by the assessee was that
the product produced at the site is only concrete mix, which is different
from RMC; and that RMC cannot be manufactured at the site of construction;
that chemicals/retarders are not used in site mix concrete. Further, we
also find from Order-in-original as well as order passed by the Tribunal
that the assessee always accepted that what was being produced was RMC and
claimed exemption only on the ground that it was manufactured at the site
of construction and captively used.
Even in the writ petition filed by the assessee in the High Court of
Madras, the assessee itself proceeded on the basis that what was
manufactured was RMC inasmuch as in para 3 of this writ, it was mentioned:
'the writ petitioner had set up a Unit for manufacture of Ready Mix
Concrete at Manapakkam.' Paras 3 and 4 reads as under:
“3. The writ petitioner had set up an Unit for manufacture of Ready Mix
Concrete at Manapakkam and has registered itself with the Central Excise.
According to the respondents, the Ready Mix Concrete manufactured by the
petitioner is not meant to be used at the site itself and they have to be
cleared and sold to various other construction companies. The product is
transported through the vehicle fitted with mixing drum specifically
designed to carry Ready Mix Concrete from the petitioner's unit to various
concrete sites. The product is marketable, transportable and eventually
available for sale.
4. The product concrete mix was not specified anywhere in Chapter 28 of
the Central Excise Tariff Act, 1995. It was classified under Chapter sub-
heading 38.23. However, as both the concrete mix and Ready Mix Concrete
were closely related products, confusion arose in respect of classification
and levy of duty.”
We are also inclined to agree with the stand taken by the Revenue that it
is the process of mixing the concrete that differentiates between CM and
RMC. In the instant case, as it is found, the assessee installed two
batching plants and one stone crusher at site in their cement plant to
produce RMC. The batching plants were of fully automatic version.
Concrete mix obtained from these batching plants was delivered into a
transit mixer mounted on a self propelled chassis for delivery at the site
of construction is in a plastic condition requiring no further treatment
before being placed in the position in which it is to set and harden. The
prepared chassis which was mounted was to ensure that when the concrete mix
is taken to the actual place of construction, it keeps rotating. It is
also significant to mention that for producing the concrete mix, material
used was cement, aggregates, chemically analysed water and admixtures,
namely, retarders and plasticizers. As the L&T was constructing cement
plant of a very high quality, it needed concrete also of a superior quality
and to produce that aforesaid sophisticated and modernised process was
adopted. The adjudicating authority in its order explained the peculiar
feature of RMC and the following extracts from the said discussion needs to
be reproduced:
“32. Central Excise Tariff does not define Ready Mix Concrete. Therefore,
as per the established case-laws on the subject it is necessary to look for
the meaning of this expression as understood in the market viz., as
understood by the people who buy and sell this commodity. In this
connection it would be relevant to refer to the following excerpts from an
article – what is ready mix concrete, appearing in internet website of
National Ready Mix Concrete Association, USA:-
(i) Concrete, in its freshly mixed state, is a plastic workable mixture
that can be cast into virtually any desired shape. It starts to stiffen
shortly after mixing, but remains plastic and workable for several hours.
This is enough time for it to be placed and finished. Concrete normally
sets or hardens within two to 12 hours after mixing and continue to gain
strength within months or even years.
(ii) Ready Mix Concrete refers to concrete that is delivered to the
customer in a freshly mixed and non-hardened state. Due to its durability,
low cost and its ability to be customized for different applications, Ready
Mix Concrete is one of the world's most versatile and popular building
materials.
(iii) Admixtures are generally products used in relatively small
quantities to improve the properties of fresh and hardened concrete. They
are used to modify the rate of setting and strength, especially during
solid and cold weather. The most common, is an air-entraining agent that
develops millions of tiny holes in the concrete, which imparts the
durability to concrete in freeing and thawing exposure. Water reducing
Admixtures enable concrete to be placed at the required consistency while
minimizing water used in the mixture, thereby increasing the strength and
improving durability. A variety of fibers are incorporated in the concrete
to control or improve aberration and impact resistance.”
After referring to some text as well, the adjudicating authority brought
out the differences between Ready Mix Concrete and CM which is
conventionally produced. The position which was summed up showing that the
two products are different reads as under:
“From the literature quoted above it is clear that Ready Mix Concrete is an
expression now well understood in the market and used to refer to a
commodity bought and sold with clearly distinguishable features and
characteristics as regards the plant and machinery required to be set-up
for its manufacture and the manufacturing processes involved, as well as
its own properties and the manner of delivery. RMC refers to a concrete
specially made with precision and of a high standard and as per the
particular needs of a customer and delivered to the customer at his site.
Apparently due to the large demand resulting from rapid urbanization and
pressure of completing projects on time, consumption of RMC has steadily
grown replacing the conventional/manual concreting works. Today leading
cement companies have entered the field by setting-up RMC plants in which
L&T ECC is one. RMC is slowly replacing site or hand mixed concrete
because of the distinct advantages due to technology, speed and
convenience. Furthermore, absence of the need to deal with multiple
agencies for procuring and storing cement, sand, blue metal and water as
well as the absence of the need to handle unorganized labour force are
factors influencing customers to go in for RMC in preference to CM.”
In this backdrop, the only question is as to whether RMC manufactured and
used at site would be covered by notification. Answer has to be in the
negative inasmuch as Notification No. 4 dated March 01, 1997 exempts only
'Concrete Mix' and not 'Ready Made Mixed Concrete' and we have already held
that RMC is not the same as CM.
In Simplex Infrastructures Limited case, this Court had not delved into the
issue at hand at all except stating that, “if RMC is produced at site then
alone the assessee is entitled to exemption under the requisite
notification.” There is no discussion on this behalf as well. Though,
para 3 starts with the words: 'As stated above', a reading of earlier paras
reveals that in the preceding paras also there is no discussion on this
aspect. It appears that the parties proceeded on the basis that if RMC is
produced at site, it will be entitled to exemption. Otherwise there is no
discussion that RMC is different from CM and the notification mentioned
only approves CM and not RMC. Moreover, para 5 of the said judgment would
disclose that after setting aside the order of the Tribunal and in an
appeal filed by the Revenue, matter was remitted back to the Tribunal
without expressing any opinion on the merits of the case. Para 5 reads as
under:
“5. In the above circumstances, we set aside the impugned order of the
Tribunal and we remit the matter to the Tribunal to decide, in accordance
with law, the dichotomy which arises in the present case between the
existence of the batching plant, its location, its mobility and the area of
the site. We make it clear that we express no opinion on the merits of the
case. We remit this matter only on the basis of the statement made in the
impugned order of the Tribunal that the above position was not disputed.
Keeping the arguments on both sides open and further giving liberty to both
sides to file additional documents, we set aside the impugned order and we
remit the mater to the Tribunal for fresh consideration in accordance with
law.”
Therefore, the aforesaid judgment would have no application.
On these facts, as far as appeal of the L&T is concerned that warrants to
be dismissed when we find that the assessee was producing RMC and the
exemption notification exempts only CM and the two products are different.
Even if there is a doubt, which was even accepted by the assessee, since we
are dealing with the exemption notification it has to be strict
interpretation and in case of doubt, benefit has to be given to the
Revenue. Appeals of L&T, therefore, fails and are dismissed.
CIVIL APPEAL NO. 6138 OF 2008
In the instant case, the CESTAT has held that as the RMC was manufactured
at site and was used in construction work at site, the same was covered
vide Notification No.4/97-CE. This view of the Tribunal has been upheld by
the High Court thereby dismissing the appeal of the Revenue. Having regard
to our discussion in the case of L&T, this view has to be rejected. At the
same time, we find that the process of preparing the Concrete Mix at site
has not been discussed at all. It is only that process which would
determine as to whether the produce could be termed as CM or it would be
treated as RMC. Therefore, while allowing the appeal of the Revenue and
setting aside the order of the Tribunal as well as the High Court, we remit
the case back to the adjudicating authority to look into the matter afresh
from this angle, keeping in view our observations in this judgment.
Since it is an old matter, the Tribunal shall endeavour to decide the case
within one year. Parties shall be free to produce material/evidence to
show how the Concrete was mixed.
.............................................J.
(A.K. SIKRI)
.............................................J.
(ROHINTON FALI NARIMAN)
NEW DELHI;
OCTOBER 06, 2015
-----------------------
[1]
Chapter 38 ---heading 38.23 of the Central Excise Tariff for the year
1996-1997 provided as under:
“38.23 ---Prepared binders for foundry moulds or cores; chemical
products and preparations of the chemicals or allied industries (including
those consisting of mixtures of natural products), not elsewhere specified
or included; residual products of the chemical or allied industries, not
elsewhere specified or included”
Goods falling under heading 38.23 were excisable to 20% excise duty.
[2] 2006 (198) ELT 177 (Mad.)
[3] 2008 (225) ELT 338 (SC)
[4] 2001 (138) ELT 911
[5] 2001 (132) ELT A106 (SC)
[6] (2008 (225) ELT 338 (SC)