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TMI Blog2021 (12) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is concrete mix , which is not dutiable - the appellant has taken registration for service tax, paying service tax and making compliances for the said activity under dispute, the facts were in the knowledge of the Department and as such extended period of limitation is not invokable. Appeal allowed - decided in favor of appellant. - Excise Appeal Nos. 70267-70268 of 2020 - FINAL ORDER No. 70257-70258 / 2021 - Dated:- 30-11-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) AND MR. P. ANJANI KUMAR, MEMBER (TECHNICAL) Shri Anurag Mishra, Advocate for the appellants Shri Santosh Kumar Agarwal, Authorised Representative for the respondent ORDER The issue involved in these appeals is whether Ready Mix Concrete (RMC in short) or concrete mix manufactured by the appellant at the site of M/s Supertech Limited, and supplied to them, whether it is dutiable under Central Excise Act. 2. Brief facts of the case are, based on intelligence that RMC was being manufactured and used at the construction site of residential complex of M/s Supertech Limited, and no Central Excise duty was being discharged, the Officers of Revenue visited the premises (Eco Village-I) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of bills submitted by ACPL on M/s Supertech Limited, from perusal of ledger accounts, there appears that mobilisation advance was also given, which was adjusted regularly against the payment against the R.A. bills. It further appeared that appellant was registered under Service Tax with the Service Tax Commissionerate, Delhi, and the same was found mentioned in the invoice. Thereafter, the Assistant Commissioner (AE), Service Tax issued letter dated 13.01.2017 to the appellant, requesting therein to provide requisite information. In response M/s Supertech Limited vide letter dated 22.02.2017, submitted charts showing year-wise, month-wise quantity value of Concrete Mix material Pumping Mix supplied to them by their contractor(s) including the appellant. It was observed by the Revenue that in the invoice etc. the supply was mentioned as Supply of concrete Mix material , which appeared to Revenue to be RMC supplied to Supertech Limited by the appellant. As per data provided, the year-wise supply made by the appellant to M/s Supertech Limited was compiled. 5. It further appeared from the examination of record and data furnished by M/s Supertech Limited, that they have submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, chemicals are mixed, which renders it as RMC; that the basic difference between concrete mix and RMC was the use of chemical. 8. It further appeared to Revenue that RMC is an excisable product and classifiable under CTH 38245010 under Miscellaneous Chemical Products, under Central Excise Tariff Act, 1985 and attracts duty @ 6% of the value. Further, RMC was chargeable @ 2% in terms of Entry No. 46 of Notification No. 1/2011-CE, as amended by Notification No. 16/2012-CE, on the condition that the credit of duty on inputs or tax on input services has not been taken under the provisions of Cenvat Credit Rules, 2004. It further appeared that the appellant never provided any information regarding the availment of cenvat credit to the Department. Further, appellant was charging service tax on the job work invoices (for making concrete mix). Thus, it was assumed that the appellant was availing cenvat credit on input and input services. Thus, it appears that the benefit under the aforementioned notifications was not available. It further appeared that dutiability of RMC has also been clarified by the Board Circular No. 368/1/98/CX dated 06.01.1998, according to which it appeared that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Mishra, Assistant Vice President (Projects) of M/s Supertech Limited under Rule 26. Being aggrieved, the appellant company is before this Tribunal. 11. Heard the parties and perused the written submissions filed by the appellant company. 12. Before proceeding to dwell on the facts, it is required to take notice that the issue as to what is concrete mix and what is RMC have been settled by Hon ble Supreme Court in the case of L T vs. CCE, Hyderabad -2015 (324) ELT 646 (SC). The Hon ble Supreme Court has referred to Board Circular No. 237/71/96-CX dated 12.08.1996, wherein it has been held that i) The Ready Mix Concrete plant consists of stone crushers, conveyors, vibrator screen to segregate different sizes of stone aggregates, and a sand mill to produce sand from stones, which was otherwise not present at the site ECO Village-II, Greater Noida, since the appellant were only manufacturing Concrete Mix . ii) A central batching plant is also installed, in which all aggregates are weighed, batched by electrical controls and limit switches, which was otherwise not present at the site ECO Village-II, Greater Noida, since the appellant were only manufacturing Concrete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Tax provisions with the Department, and were paying service tax on the job charges. Admittedly, appellant have raised two bills one for supply of material and the other for job work mixing the cement, aggregate water, etc. in its batching plant. Further, appellant has raised the job work invoice for concrete mix. 15. Accordingly, in view of our findings and observations, we hold that Revenue have not brought any facts on record in support of its allegation of manufacture of RMC by the appellant. Thus, in the facts and circumstances, we conclude that what has been manufactured and supplied by the appellant is concrete mix , which is not dutiable. Further, in view of our finding that the appellant has taken registration for service tax, paying service tax and making compliances for the said activity under dispute, the facts were in the knowledge of the Department and as such extended period of limitation is not invokable. We further find that in trade parlance concrete mix and RMC are used interchangeably, as clarified by the Board Circular and by the Hon ble Supreme Court. Manufactured of RMC is a process involving several machines and is a matter of precision. 16. A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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