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TMI Blog2018 (10) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... 16 they have been legislative changes as well as the changes in the IS specification No. 456:1978 in the year 2000 and 2013. He argued that not only the law but also the evidence and the material relied documents by the Hon'ble Apex Court in the case of aforesaid decision has charged. He argued that in these circumstances the said decision cannot be applied to the instant case. 2.1 Ld. Counsel argued that the exemptions provided under Notification 36/94-CE dated 01.03.1994 and Notification No. 8/1996-CE dated 23.07.1996 were for all goods falling under Chapter 68.07 which were manufactured at the site of construction and use at construction site. Ld. Counsel submits that as noted by the Apex Court, there was no separate and individual exemption for either "Concrete Mix" or RMC apart from the aforesaid exemption, both of which were classifiable under Chapter 68.07. The Appellant submits that thereafter, in the Union Budget 1997, a new and specific entry for RMC was enacted under Chapter Heading 38 24.20 of the First Schedule to the Central Excise Tariff Act, 1985. The Appellant submits that simultaneously, a specific exemption was provided under entry No. 51 of Notification No. 4/9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 of the Impugned Notification has to be determined in this backdrop. The distinction between RMC and Concrete Mix with regards to eligibility of the exemption has been rendered redundant with these tariff amendments and this entry of the Impugned Notification has to be given an interpretation based on prevalent tariff entries. 2.3 The Indian Standards governing production of Plain or Reinforced Concrete has been subsequently amended. The Counsel argued that the Department has already taken a stand vide Circular No.368/1/98-CX, dated 6-1-1998, which was put forward even before the Hon'ble Supreme Court that if concrete is mixed in terms of IS 456:1978, then it would be treated as 'Concrete Mix' and if it was by IS 4926:1976 it would by RMC. The captioned Supreme Court judgment is based upon the Indian Standard IS456:1978 and IS 4926:1976, which were the applicable standards during the impugned period in that case, viz. 1996 to 1998. The Appellant submits that specifically IS 456:1978 talks of manual batching and mixing of concrete under paragraph 9.2 whereas there was a separate standard for manufacture of RMC, viz. IS 4926:1976. The Appellant submits that it is in that context th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plants are not RMC plants, the latter having certain additional features which are not available in all batching and mixing plants. The Appellant submits the entry 144 mentions that the exemption will be available to goods falling under Chapter 38 and does not specifically mention any particular sub heading including that of RMC, viz. 3824 50 10, which it has mentioned for various other entries in the said Notification. The Appellant, therefore, submits that the legislature clearly intended to extend the benefit to all types of concrete mixes manufactured at the site of construction for use in the construction activityas has been held in the recent decision of the Hon'ble Tribunal at Delhi in the case of CCE, Delhi-II vs. Consolidated Construction Consortium Ltd [Final Order No. 54623-54624 of 2016 decided on 18.10.2016] 2.5 Ld. Counsel argued that extended period of limitation has been wrongly invoked and penalty has been wrongly imposed in the present case. Ld. Counsel relied on the recent decision of the Hon'ble Tribunal in the case of Shapoorji & Pallonji Co. Ltd vs. CCE, Mumbai [2016 (344) E.L.T. 1132 (Tri. - Mumbai)] wherein in exact same factual background, post the 2015 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We have gone through the rival submissions. The issue before us is if the product manufactured by the appellant, described by the revenue as 'ready-mix concrete', eligible for exemption under Central Excise Notification 12/2012 dated 17.03.2012 as 'concrete mix' manufactured at the site of construction for use and construction work at such site under Chapter 38 of the Central Excise Tariff. Similar issue was examined by Hon'ble Apex Court in appellant's own case reported in 2015 (324) ELT 646 (SC) in the context of Notification 4/1997-CE dated 01.03.1997. Notification 4/1997 exempted following: Table 1 TABLE S.No. Chapter or heading No. or sub-heading No. Description of goods Rate Conditions (1) (2) (3) (4) (5) 51. 38 Concrete mix manufactured at the site of construction for use in construction work at such site Nil - Notification 12/2012 exempt the following: Table Sl. No. Chapter or heading or sub-heading or tariff item of the First Schedule Description of excisable goods Rate Condition No. 144 38 Concrete Mix manufactured at the site of construction for use in construction work at such site. Nil - At the material time heading 38.24 of Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court came to the conclusion that since machines are used to manufacture ready mix concrete (IS 4926 : 1976) the product manufactured by the appellant by machines would qualify as ready mix concrete. Ld. Counsel argued that IS 456: 2000 now prescribes that for large and medium products concrete can be manufactured in captive automated matching and mixing plants. On the basis of above Ld. Counsel has tried to argue that the distinction drawn by Hon'ble Apex Court. While arriving at its decision on the basis of the manner of manufacture on the basis of IS Specification no longer exists as both IS Specification 1926:1976 and 456:2000 envision manufacture of concrete by automatic plants. In para 19 Hon'ble Apex Court agreed with stand taken by Revenue that it is the process of mixing the concrete for differentiating between concrete mix and RMC. In para 20 of the decision of Hon'ble Apex Court has agreed with the observation of the adjudicating authority regarding the distinction between RMC and concrete mix in following Notes. "20. After referring to some text as well, the adjudicating authority brought out the differences between Ready Mix Concrete and CM which is conventional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue. Appeals of L&T, therefore, fails and are dismissed." 8. Coming to the issue of limitation, it is seen that Ld. Counsel has relied on the decision of Tribunal in the case of Shapoorji & Pallonji Co. Ltd. vs CCE, Mumbai 2016 (344) ELT 1132 (Tri. Mum) wherein para 4.4 following has been observed: "4.4 Insofar as the issue of limitation is concerned the decision of the Hon'ble Supreme Court in the case of Continental Foundation Jt. Venture (supra) is squarely on this issue. In the said decision the Hon'ble Apex Court has observed as follows :- 11. Factual position goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent Larger Bench's judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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