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TMI Blog2017 (11) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment of duty by irregularly availing the benefit of Notification - extended period rightly invoked. Appeal dismissed - decided against appellant. - E/52826-52836 & 52856/2016 EX (DB) - A/56930-56941/2017-EX[DB] - Dated:- 5-10-2017 - Dr. Satish Chandra, President And Mr. V. Padmanabhan, Member (Technical) Present Shri Puneet Bansal, Advocate for the appellant Present Shri M.R. Sharma, AR for the respondent ORDER Per: V. Padmanabhan 1. These appeals arise out of the Order-in-Original No.5-15/2016-17 dated 30/06/2016 and are disposed of through this common order for the sake of convenience. 2. Appellant (DLF Projects Ltd.) is engaged in manufacture of Ready-Mix- Concrete RMC) falling under sub heading 38245010 of the Central Excise Tariff Act 1985 at various places where they have obtained works contract. They did not get themselves registered for manufacture of RMC at any such place and have not paid any Central Excise Duty for manufacturing and clearing the said RMC. Information gathered by the officers of Directorate General of Central Excise Intelligence, Delhi Zonal Unit (hereinafter referred to as the officers ) indicated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 13,28,255 6 52831 Delhi (DLF Tower, Okhla) March 1,2011-February 29, 2012 1,06,184 Not quantified 1,06,184 7 52832 Noida March 1,2011-February 29, 2012 7,18,838 Not quantified 7,18,838 8 52833 Kolkata March 1,2011-April 30,2012 5,30,376 Not quantified 5,30,376 9 52834 Mumbai March 1,2011-February 29, 2012 1,00,323 Not quantified 1,00,323 10 52835 Hyderabad March 1,2011-February 29, 2012 4,612 Not quantified 4,612 11 52836 Cochin (kakanand) March 1,2011-February 29, 2012 9,83,293 Not quantified 9, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant have set up plants in various sites for manufacture of Ready-Mix-Concrete for use in construction in the immediate vicinity of the Plant. The appellant also is not disputing the fact that the goods manufactured by them were in fact Ready-Mix-Concrete . They have claimed that since such goods have been used in construction work at such site, the benefit of notification will be entitled to them. 10. We find that the Hon Apex Court had occasion to consider the dutiability as well as exemption to Ready-Mix-Concrete (RMC) in the case of L T (supra). From the record, we also find that the Adjudicating Authority has also considered the observation of Apex Court in the above case. It is only after considering the process of manufacture undertaken by appellant in various places, in the light of the observation of Apex Court, he has concluded that the goods are in fact Ready-Mix-Concrete and not entitled to the benefit of the exemption. We reproduce below the relevant observation of the apex court: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed in relatively small quantities to improve the properties of fresh and hardened concrete. They are used to modify the rate of setting and strength, especially during solid and cold weather. The most common, is an air-entraining agent that develops millions of tiny holes in the concrete, which imparts the durability to concrete in freeing and thawing exposure. Water reducing Admixtures enable concrete to be placed at the required consistency while minimizing water used in the 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 requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we remit the matter to the Tribunal to decide, in accordance with law, the dichotomy which arises in the present case between the existence of the batching plant, its location, its mobility and the area of the site. We make it clear that we express no opinion on the merits of the case. We remit this matter only on the basis of the statement made in the impugned order of the Tribunal that the above position was not disputed. Keeping the arguments on both sides open and 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, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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