2013 (9) TMI 282 - AT - Central Excise

Classification of goods - Classification of dry concrete mixture , loose or packed, manufactured by the appellant Classification under heading 3824.20 or under heading 3824.90 - Held that - As per the decision in Unitech Prefab Ltd. vs. CCE, Mumbai III 2004 (8) TMI 171 - CESTAT, MUMBAI , The words plastic condition can only mean a shape taking condition, a forming condition. A dry mix of cement sand and stones cannot be in plastic condition. Water and other plasticizers give that essential characteristic to Ready Mixer Cement to achieve a forming condition . - Tribunal observed that the dry mix of cement stones and sand though cleared in mixture trucks to the site, cannot be held to be ready mix concrete inasmuch as there was no plastic condition, or setting and hardening quality on account of any addition of water. As such, the Tribunal accepted the assessee s contention in that case that dry mix cement cannot be held to be ready mix cement Goods to fall under 3824.90 - dry mix concrete and not under 3824.20 -Ready mix concrete.

Summary

Issues: Classification of 'dry concrete mixture' under heading 3824.20 or 3824.90, availability of SSI exemption, and re-quantification of duty demand.

Classification Issue Analysis:
The dispute in the present appeal revolves around the classification of the appellant's 'dry concrete mixture'. The appellant claims classification under heading 3824.20 as 'ready mix concrete', while the Revenue argues for classification under heading 3824.90 as 'other'. The manufacturing process involves mixing cement, calundum or casal, sand, additives, and encapsulation in polythene bags. The Chemical Examiner's report describes the product as a grey powder with cement characteristics but no stone aggregates. The lower authorities concluded that the product does not contain water or stone aggregates, essential for 'ready mix concrete', and has a longer shelf life. The product is not transported in transit mixers with water added, as required for 'ready mix concrete'. The Tribunal's decision in a similar case emphasized the necessity of water for 'ready mix concrete', indicating that the absence of water renders the product as 'dry mix concrete'. The product's removal in plastic bags further supports its classification under heading 3824.90.

SSI Exemption and Duty Demand Analysis:
The appellant raised alternative claims for SSI exemption and re-quantification of duty demand, which were not initially presented before the adjudicating authority but were raised before the first appellate authority. The legal issues of SSI exemption and re-quantification require examination by the lower authorities. The appellant's advocate acknowledges the late submission of these claims and agrees to the examination of these issues. The appellate tribunal directs the lower authorities to assess the availability of SSI exemption, determine the admissibility, and re-quantify the duty demand by considering the entire consideration as cum duty price.

In conclusion, the appellate tribunal upheld the Revenue's classification of the 'dry concrete mixture' under heading 3824.90 based on the absence of water and other characteristics required for 'ready mix concrete'. The tribunal directed the lower authorities to address the legal issues of SSI exemption and re-quantification of duty demand, which were raised belatedly but warrant examination. The appeal was disposed of with these directives for further assessment by the lower authorities.