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TMI Blog2019 (1) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... to install their batching plant at Kumbalgodu at the location owned by BDA and appellant is permitted to prepare the concrete mix at the place provided by BDA. The said concrete mix plant was started in September 2012. Appellant prepared concrete mix as per specification given by BDA in compliance with IS:456:2000. The appellant was under the belief that the concrete mix prepared by them is classifiable as concrete mix under Chapter Heading 38245010 of Central Excise Tariff Act, 1985 as the same was being prepared at site of construction and the same is exempted from excise duty vide Sl. No. 144 of Notification No. 12/2012 CE dated 17.03.2012. Department entertained a view that the appellant is engaged in the manufacture of Ready Mix Concrete and the same is cleared by them from their plant situated at Kumbalgodu to the project site without taking any Central Excise Registration and without paying any excise duty. Department conducted the search and obtained documents/record of the appellant and seized the same under mahazar proceedings. Department also recorded the statement of one T.R. Umaprasad on 05.03.2014 under Section 14 of the Central Excise Act 1944 and on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RMC plant located at Kumbalgodu which is far away from the construction site and then RMC was transferred by other vehicles to said construction site. In reply to this allegation the learned counsel submitted that it is wrong that the RMC plant was located at a far of place whereas the mahazar which was prepared on the spot clearly shows that the concrete mix was manufactured at the site of the project and for exclusive use of the said project only as per the conditions of the contract with Bangalore Development Authority. He further submitted that the Department in the show-cause notice has stated that the appellant has set up a batching plant for manufacturing concrete mix and such batching plant is required only to manufacture RMC and therefore they are produced the impugned goods as RMC which according to the counsel for the appellant is beyond the scope of show-cause notice and therefore the Commissioner (Appeals) has travelled beyond the show-cause notice and therefore his findings are liable to be set aside. In support of his submission, he relied upon the following decisions: a. ManikyaPlastichem Pvt. Ltd. Vs. CCE - 2003 (160) E.L.T 273 b. Kores (I) Limited Vs. CCE - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17.03.2012 was amended vide Notification 12/2016-CE dated 01.03.2016 and an explanation was added to Sl. No. 144. The said explanation is extracted below for ready reference. "Explanation - For the purpose of this entry, the expression "site" means any premises made available for the manufacture of goods by way of a specific mention in the contract or agreement for such construction work, provided that the goods manufactured at such premises are solely used in the said construction work only". 3.2. He further submitted that BDA directed the appellant to use controlled concrete mix as per IS:456:2000. IS:456:2000 is prescribed for concrete mix only and a separate IS:4926:2003 is prescribed for RMC and therefore impugned goods according to the appellant is concrete mix only and not RMC. He further submitted that in the appellant's own case for the earlier period, this Tribunal vide its Order No. A/1567 and 1568/06/WZB/06-C-lll (EB) dated 26.07.2005 and Order No. A/90672/16/EB dated 29.09.2016 has held that the appellant is entitled for the exemption as the product manufactured by the appellant is concrete mix. He further submitted that the entire demand is barred by limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rictly construed. 5. After considering the submissions of both the parties and perusal of the material on record, we find that as per the mahazar dated 05.03.2014 prepared on the spot in the presence of witnesses, it is clearly mentioned that the production of concrete mixing activity was in progress at the site of the project. Further we find that the original authority after considering the material on record and the statement of T.R. Umaprasad wherein he has fairly stated that the concrete was produced at their batching plant at the Kengeri site and used for construction of the said project. Further we find that the show-cause notice which has proposed to classify the impugned goods as RMC is without any evidence and basis. Further we find that as per the Board's Circular 237/71/96-CX dated 12.08.2016 wherein the Board has clarified about the classification of RMC and its excisability and has observed that RMC plant consists of stone crushers, conveyors, vibrator screen and a sand mill and further a central batching plant is also installed in which aggregates are weighed, batched by electrical controls and limit switches and thereafter water is fed through flow meters after sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever that when a person is held to be eligible to obtain the benefits of an exemption notification, the same should be liberally consumed." 5.1. Further we find that the CESTAT in appellant's own case No. A/1567 and 1568/06/WZB/06-C-lll (EB) dated 26.07.2005 and A/90672/16/EB dated 28.09.2016 has allowed the central excise duty exemption to concrete mix manufactured at site. Here we would refer to the judgment dated 28.09.2016 wherein the Tribunal in the appellant's own case has held as under: "6. We have considered the submissions made at length by both sides and perused the records. The core issue in the case in hand whether the cement concrete mixture or ready mix concrete is manufactured by the appellant at the site or otherwise. 6.1. We find that the issue in this case is now squarely covered by the order of the Tribunal in the appellant's own case in appeal number E/610 & 670/2001. While disposing of these appeals by final order number A/1567 and 1568/06/WZB/06-C-III (EB) dated 26.07.2005, this bench in paragraph number 8 held as under: "8. As for the period from 01.03.1997 to 01.06.1998, the product is exempt from duty vide Notification No. 4/97 dated 01.03.1997 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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