1999 (7) TMI 325 - AT - Central Excise

Summary

Issues:
1. Waiver of deposit of duty and penalty under Section 11AC totaling Rs. 2.20 crores.
2. Classification of material aggregated at the batching plant as concrete under Heading 38.23.
3. Dispute regarding the addition of water to the dry mixture at the batching plant.
4. Interpretation of technical requirements for ready mix concrete as per Indian Standard specification and Board circular.
5. Prima facie case on limitation for the applicant.

Analysis:
The judgment involves a case where the applicant sought waiver of deposit of duty and penalty amounting to approximately Rs. 2.20 crores. The applicant was engaged in the supply and laying of cement concrete. The dispute centered around the classification of the material aggregated at the batching plant as concrete under Heading 38.23. The Commissioner confirmed this finding, emphasizing that concrete must contain water, among other ingredients, for it to emerge commercially and technically. The applicant contended that water was added at the construction site, not at the batching plant, based on statements from their engineer and managing director.

The Tribunal analyzed the evidence and technical requirements for ready mix concrete as per the Indian Standard specification and Board circular. It was noted that concrete must contain water, as highlighted in various technical literature sources. The Commissioner's reasoning was deemed specious as there was no concrete evidence to show that water was added at the batching plant. The presence of a water meter alone was insufficient to prove water addition. The Tribunal emphasized that concrete cannot be manufactured without water, as supported by scientific and technical dictionaries and literature.

Based on the analysis, the Tribunal found that the applicant had a strong prima facie case on limitation. Consequently, the Tribunal waived the deposit of duty and penalty and stayed its recovery. This decision was made considering the lack of evidence supporting the addition of water at the batching plant and the technical requirements for producing concrete.