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2021 (6) TMI 370 - HC - Central ExciseManufacture of RMC at site or not - TMaintainability of petition - petitioners have not filed this petition impugning the Order-in-original within the statutory period prescribed under Section 35 of the Excise Act - petitioners’ case hinges on the assertion that the installation at the project site for manufacture of CM (which is exempted) is different from the installations for manufacture of RMC, and they have manufactured controlled CM, as civil contractors executing civil works contract, for captive use at site and not for sale - HELD THAT:- On examining the explanation offered by the petitioners for not filing statutory appeal and because of the absence of the necessary details, has opined in paragraph 16 above that the petitioners are superfluous in their explanation of the delay in availing/failure to avail the appeal remedy. The delay in impugning the Order-in-original, which is not sufficiently explained, must be construed as unreasonable4 and therefore, the writ petition must fail at this threshold bar. This consideration would be distinct and separate from examining the explanation offered for the purposes of condoning the delay which would be in the teeth of the decision of the Hon’ble Supreme Court in OIL & NATURAL GAS CORP. LTD. VERSUS GUJARAT ENERGY TRANSMISSION CORPORATION. LTD. AND ORS. [2017 (3) TMI 1628 - SUPREME COURT]. Whether a concrete mix manufactured at the site can be classified as RMC will have to be decided based on (1) the plant and machinery set-up for its manufacture, (2) the manufacturing processes involved, (3) the properties of the concrete mix and (4) the manner of delivery. It is undisputed that the petitioners have set-up a batching plant comprising of separate silos and concrete mixer with necessary pumps, piping system and control panel to manufacture concrete mix of required grades and quality as per the contractual terms and the concrete mix manufactured by them was no different from the concrete mix purchased by the petitioner in case of breakdown or maintenance - The petitioners, only because they had not installed either stone crushers with vibrators or sand mill or because they purchased stone aggregates, sand and other raw material from third-party vendors, cannot be permitted to contend that the machinery installed by them and the manufacturing process adopted by them are different and distinct from the machinery installed and process followed for manufacturing RMC. If the petitioners have manufactured RMC, it would be of no significance, given the text of the exemption under the relevant notification and the clarification, that it is used for captive use and not for sale. The writ petition is rejected concluding that the first respondent has rightly classified the concrete mix manufactured by the petitioners at the project site as RMC - petition dismissed.
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