TMI Blog2013 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... essarily mean that the source of power for the pump should be attached to the pump. What is required is that it should be a pump driven by power, which can be an IC engine or an electric motor or some other source of power. A pump which is designed to handle the water and is power driven viz. it could be a mono block pump where the pump and electric motor are integral parts of the pump set or a pump set where the provisions are made for fitting an electric motor can be considered as power driven pumps even when the source of power is not fitted. Quite often, the customer purchases only pumps from the manufacturer independently. In such cases, a pump purchased by him does not become a non-driven power pump just because the customer bought it without a motor. - Benefit of exemption allowed - Decided in favor of assessee. - E/816/2009 - A/926/2012-WZB/AHD - Dated:- 2-7-2012 - S/Shri M.V. Ravindran, B.S.V. Murthy, JJ. REPRESENTED BY : Shri Alok Bhartwal, Advocate, for the Appellant. Shri S.K. Mall, AR, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. This appeal is directed against Order-in-Appeal No. 144 to 145/2009 (Ahd.-II)CE/ID/Commr(A)/Ahd., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -C.E., dated 1-3-2006. It is his submission that the appellant has availed the benefit of said notification for discharge of duty liability at concessional rate of duty than the rate fixed by the tariff. It is his submission that the product manufactured by the appellant is undoubtedly the centrifugal pump, which falls under tariff heading No. 84.13 and is primarily designed to handle the water. After taking us through the tariff heading, he would take us through the general exemption granted to the said item at Sr. No. 17 of Notification No. 10/2006-C.E., dated 1-3-2006 as amended from time to time. He would read the said heading as to indicate that the Centrifugal Pumps are also eligible for reduced rate of duty, as has been indicated in the said exemption notification. It is also his submission that various other manufacturers of identical pumps are availing the benefit of said notification all over India. It is his submission that the Tribunal in the case of Beacon Weir Ltd. v. CCE, Madras - 1997 (95) E.L.T. 140 (Tribunal) and in the case of Kishore Pumps Ltd. - 1997 (91) E.L.T. 91 (Tribunal) would squarely cover the issue in his favour, as it has been held that the electric mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual matrix which is undisputed is that the appellant herein are manufacturer of Centrifugal Pumps falling under Chapter Heading No. 84.13 during the material period. It is also undisputed that the appellant is also clearing these Centrifugal Pumps to M/s. Kirloskar Cummins Ltd., who attach the motor to it and cleared the same as Pump Set. It is also undisputed that the Centrifugal Pumps manufactured by the appellant are primarily designed for handling water and no other liquids. 9. On this background, it has to be seen whether the appellant is eligible for the benefit of Sr. No. 17 of Notification No. 10/2006-C.E., dated 1-3-2006. In order to appreciate the correct position, we reproduce the heading which grants exemption. General Exemption No. 50. Effective rates of duty for specified goods of Chapters 44, 48, 59, 66, 68, 70, 73, 74, 76, 82, 84, 85, 87, 90, 94 and 95 and specified waste scrap and industrial waste. - In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do and in supersession of the notification of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted gas mantle fabric, whether or not impregnated, for use in incandescent gas mantles Nil 7. 6602 00 00 All goods Nil 8. 6814 Articles of mica 8% 9. 68 (except headings 6804, 6805, 6811, 6812, 6813) Solid or hollow building blocks, including aerated or cellular light weight concrete blocks and slabs 8% 10. 7015 10 Glasses for corrective spectacles and flint buttons Nil 11. 7323 All goods other than parts and pressure cookers Nil 12. 7326 20 10 All goods Nil 13. 7418 Table, kitchen or other household articles (other than parts) Nil 14. 7615 11 00, 7615 19 Table, kitchen or other household articles, pot scourers and scouring or polishing pads, gloves and the like (other than parts and pressure cookers falling under tariff item 7615 19 10) Nil 15. 8211 or 8214 Knives Nil 16. 8215 All goods Nil 17. 8413 Power driven pumps primarily designed for handling water, namely, centrifugal pumps (horiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibre optic lights (12) Ophthalmo dynamometer (13) Pantoscope (14) Projection magnifier for contact lens inspection and verification (15) Radiuscope base curve (for measurement of contact lenses) (16) Refractometer (17) Roper Hall foreign body locator (18) Softometer for measurement of the base curve of soft contact lens (19) Stereozoom microscope for inspection of contact lens (20) Ultrasonography A.B.M. scan/pacchymeter/cleaner (21) Linear accelerator. (Notification No. 10/2006-C.E., dated 1-3-2006 as amended by Notification No. 48/2006-C.E., dated 30-12-2006 and Notification No. 10/2007-C.E., dated 1-3-2007) 10. On perusal of the records, it is seen that the Show Cause Notices were issued on the ground that the appellant had wrongly availed the benefit of Notification No. 10/2006-C.E., dated 1-3-2006 by clearing the Centrifugal Pumps without attaching prime mover i.e. motor/engine. Demands have been confirmed on the ground that the pumps, though basically designed to lift water from one point to another, there is no energy in form of motor and the benefit of notification can be availed only if the pumps are attached with electric motors. It is undisputed that such Centrifuga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E. C. vide Circular No. 224/58/96-CX., dated 26-6-1996 had given the following clarification with regard to the classification and excisability of the power driven pumps sets for handling water, is reproduced in toto. Circular No. 224/58/96-CX., dated 26-6-1996 Sub. : CE - Classification and excisability of Power Driven Pump Sets for handling water - Regarding. I am directed to say that the Confederation of Indian Industry has pointed out about divergence in practice of classification of Power Driven Pump Sets for handling water. A P.D. Pump Set may be a pump having an inbuilt prime mover designed and built as a complete unit, called a mono block pump-set, or a pump and a prime mover being two separable units whether coupled or not put/intended to be put on a common platform. It has been represented that it is classified in some Commissionerates under Chapter Heading 84.13 extending the benefit of Notification No. 56/95, dated 16-3-1995 (previous Notification No. 46/94, dated 1-3-1994) either fully or partially whereas, other Commissionerates are classifying this product under Chapter Heading 84.79 hereby denying the benefit of exemption. 2. The matter has been examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench in its referral Order No. 207/05-EX., dated 26-7-2005. At Para No. 2 the referral Bench noted as follows :- It is the contention of the revenue that the issue remains covered against the assessee by the decision of this Tribunal in the case of Continental Foundation Joint Venture v. CCE, Chandigarh - 2002 (150) E.L.T. 216. Learned counsel for the assessee also fairly concedes this position, even though he seeks to distinguish that decision on some other grounds like there being no sale or purchase. We note that the exemption is in regard to concrete mix manufacturer at site and used at site. Perusal of the Indian Standard specifications and other materials produced before us would appear to suggest that there is no difference between concrete mix and ready mix concrete. After all, concrete mix for construction is the same irrespective of method of preparation. In this view of the matter, we are not able to agree with the decision in the case of Continental Foundation Joint Venture v. CCE, Chandigarh. That decision would appear to require reconsideration by a Larger Bench. Registry is, therefore, directed to place the file before the Hon ble President for the consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and perused records. 5. In the case of Continental Foundation Joint Venture case (supra) the Tribunal after noting the process of manufacture of Ready Mix Concrete and Concrete Mix at Para No. 14 came to the following conclusion :- Thus, on carefully taking into consideration the manufacturing process adopted by the appellants, the Board s instructions and the expert opinion of the BIS on the subject, we are of the view that the product manufactured by the appellants is RMC falling under sub-heading 3824.20 of the Central Excise Tariff and shall be subject to the corresponding rate of duty. This RMC is not eligible to the exemption under Sl. No. 51 of the Table attached to Notification No. 4/97-C.E. as this notification exempts concrete mix manufactured and used at the site of construction and not the RMC. Advocate also points out that in writ petition No. 15035 of 1995 in the Hon ble High Court at Madras, the department has accepted and conceded that Ready Mix Concrete manufactured at site is eligible for exemption and now department cannot take a different stand here. He also submits that in an identical issue in the case of Larsen Tubro Ltd., the Hon ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty by issuing a notification. The exemption Notification No. 4/97-C.E. reads as under : In exercise of the powers conferred by sub-section (1) of Section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby exempts excisable goods specified in column (3) of the table below.... It can be seen that the exemption granted vide above notification, by Government to the excisable goods, is in the public interest and that also after being satisfied that it is so. To our mind the exemption granted to concrete mix at serial No. 51, manufactured at the site of construction for use in construction work at such site , should not be given a narrow meaning as to include only Concrete Mix and exclude from its ambit Ready Mix Concrete manufactured at site. It was the contention of learned D.R. that in this case also the concrete mix is not manufactured at Dam site, but away from the site and transported hence would not be eligible for exemption as it would become Ready Mix Concrete . It is a known fact that the sites of dams are at places surrounded by the hills and there may not be any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court has disposed off the writ petition as under :- 7. Though there is some inconsistency in Para-4 of the Notification issued by the Board, since the learned Standing Counsel for the respondents had clarified that Ready Mix Concrete is exempted only if it is manufactured at site by the promoter or builder for use as the case may be for its own construction at the site of construction. 8. The learned Additional Central Government Standing Counsel further represented that duty is leviable in respect of Ready Mix Concrete if it is manufactured in a Ready Mix unit installed for the purpose, supplied or transported through containers to sites of construction, which is different from the sites of mixing plant. In the light of the said stand taken by Mr. Veeraraghavan, Additional Central Government Standing Counsel, it is unnecessary to examine the contentions set out in the writ petition. 9. In the result, while recording the representation submitted by the learned Additional Central Government Standing Counsel, this writ petition is disposed of accordingly. Parties shall bear their respective costs. The abovesaid order of the Hon ble High Court fortifies our view that ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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