TMI Blog2024 (2) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have invoked extended period of limitation to demand the duty by placing the reliance on the circular clarifying on the issue which has been upheld by the Hon ble Apex Court in the said decision. It is a settled principle in law that in such a case an extended period of limitation will not be applicable. There are no merits in this appeal - the appeal filed by the Revenue is dismissed. - P. K. CHOUDHARY MEMBER ( JUDICIAL ) And SANJIV SRIVASTAVA MEMBER ( TECHNICAL ) Shri Santosh Kumar , Authorized Representative for the Revenue Shri Umesh Sarwal , Advocate for the Respondent ORDER SANJIV SRIVASTAVA : This appeal is directed against Order-in-Appeal No.NOI-EXCUS-002-APP-813-19-20 dated 19.07.2019 passed by the Commissioner (Appeals) Central Goods Services Tax, Noida. By the impugned order Commissioner (Appeals) has allowed the appeal of the Respondent stating as follows:- 6.1 Besides, the matter being under litigation, as discussed above, for a long period and various courts had held that RMC was exempted from payment of duty and moreover, appellant was under a bona fide belief, was paying service tax on consideration received which include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o considered as service and subjected to Service Tax 6.3 I also find force in the contention of the appellant that the distinction between RMC and CM was made clear only vide Notification No.12/2016 dated 01.03.2016 when entry no. 144 was substituted, therefore, demand of duty prior to 01.03.2016 was legally not sustainable and in his case the period of demand was for the period prior to 01.03.2016. The said submission of the appellant finds support from the Hon ble Apex Court decision supra, and decisions of various courts in which it was held that RMC was also exempted from payment of Central Excise duty. Larger Bench of CESTAT, in the case of Chief Engineer Ranjit Sagar Dam [2006(198) ELT 503) had held that the benefit of exemption Notification No. 4/97-C.E. is available for Ready Mix Concrete manufactured at site. The said order was affirmed by the Hon ble Punjab Haryana High Court, as reported in 2007(217) ELT 345. In view of the above discussions and findings, the impugned order in original No 12/ADC/GBN/2017-18 dated 30.11.2017 is set aside, and the appeal bearing No 2208/CE/NOIDA/APPL/GBN/2017-18 dated 23.02.2018, filed by M/s Arora Construction Co Pvt Ltd ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues shall be paid henceforth. 2.3 Respondent filed an appeal before Commissioner (Appeals) which has been allowed in their favour by the impugned order. Revenue has filed this appeal stating as follows: 1 Dutiability of RMC: The party was engaged in the manufacture supply of RMC which was liable to Central Excise duty in terms of Board's circular No.315/31/97-CX dated 23.05.97. The dutiability of RMC also stands decided by the Apex Court in the case of Larsen Toubro Vs Commissioner of Central Excise, Hyderabad [2015 (324) ELT 646 (SC). On the issue of dutiability of RMC in the present case, Commissioner (Appeals), in his impugned order has himself concluded in para 6: Thus, in the light of aforesaid Apex Court decision, RMC was a dutiable product and was liable to Central Excise Duty during the period of dispute... 2 Non-application of benefit of limitation: The Commissioner (Appeals) has placed its reliance on Mumbai's Tribunal judgement in the case of Larsen Toubro Vs Commissioner of Central Excise, Hyderabad and M/s Shapoorji Pallanji Co. Ltd. Vs Commissioner of C. Ex., Mumbai. The said judgement of M/s Shapoorji Pallanji Co. Ltd. Vs Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse of arguments. We find that the issue involved in the present case is purely an interpretational issue with regard to whether the concrete mix manufactured at the site is the same as ready mix concrete subjected to levy of central excise duty. 4.2 Learned Authorized Representative submits that the issue got settled by the decision in the case of L T [2015 (324) E.L.T. 646 (S.C.)]. Since the issue was purely an interpretational issue which was settled only after the decision of Hon ble Supreme Court, we do not find any merits in this appeal challenging the order of Commissioner (Appeals) on the ground of limitation. In their appeal revenue has stated that the Commissioner (Appeal) has in the impugned orders, relied upon the decisions which were for the period prior to issuance of the Clarification dated 23.05.1997 by the Board. However we reproduce the relevant excerpts from the decision of Hon'ble Apex Court by which it is clear that the Hon ble Apex Court had considered the said circular in the said order. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 2, 1996 to February 28, 1997 and from March 1, 1997 to March 19, 1998. 10. Notification No.4/97-C.E., dated March 1, 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. 11. Another factual aspect which needs to be highlighted is the description of RMC. In Circular dated August 12, 1996 issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6, 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 - 2006 (198) E.L.T. 177 (Mad.) 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.2). Alternatively, if classification is sought to be made under CH 38, site mixed concrete was also exempt under this notification. 14. 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. - 2008 (225) E.L.T. 338 (S.C.), 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 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. 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 prepa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 20. 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. 23. 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 24. 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-C.E. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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