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TMI Blog2024 (7) TMI 863X X X X Extracts X X X X X X X X Extracts X X X X ..... inserted as to what the site means and the Tribunal has merely held that in the facts of the case, the interpretation which was canvassed on behalf of the appellant revenue that the entire goods manufactured at the site which are required to be used for the construction site only, is not provided in the Notification. Meaning thereby that the Tribunal has considered the applicability of the Notification to the exemption of excise duty on RMC used by the respondent assessee on the site is considered. The Tribunal has also held that the respondent assessee has paid the excise duty on the RMC which is cleared outside the construction site and sold to other third party. The Appeal is required to be filed before the Hon ble Supreme Court. The Registry to hand over the papers of this Appeal to the appellant as per Order VII Rule 10 of the Code of Civil Procedure, 1908 to be filed before the appropriate Court. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Appellant(s) No. 1 : Mr Utkarsh R Sharma (6157). For the Opponent(s) No. 1 : Mr Mihir Joshi, Senior Advocate with Mr Nisarg Desai with Ms Pravalikha Batthini for Gandhi Law Asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy Mix Concrete (RMC) etc. falling under CETSH 27101930, 27101219, 27101290, 27131100, 27101990 and 38245010 of the First Schedule to the Central Excise Tariff Act, 1985. 3. During the course of audit of the records of the respondent assessee, it was found that RMC was manufactured during the period from 2014-15 to 2017-18 (upto June, 2017) and used some of the quantity captively without payment of central excise duty and also cleared some quantity for home consumption on payment of central excise duty. It was further found that the Ready Mix Concrete plant for manufacturing of RMC was installed within the construction site. When the details were sought with regard to RMC manufactured and its clearance during the aforesaid period, the statement of captive consumption / dispatch details of RMC was produced which showed clearance of RMC manufactured and consumed captively as well as sold to other customers. On further details made available to the appellant, it was found that the respondent assessee did not pay central excise duty on RMC cleared for captive consumption for the aforesaid period. Accordingly, a show cause notice dated 15.4.2019 was issued wherein it was contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Gandhi Law Associates for the respondent - assessee, who appeared on caveat, has, at the outset, raised the preliminary objection with regard to maintainability of this Appeal on the ground that as the Tribunal has decided the applicability of the Notification No. 12/2016-CE dated 1.3.2016, whether the respondent assessee is liable to pay the excise duty on the RMC used in the construction site or not, the Appeal would lie before the Hon ble Supreme Court in view of the provision of Section 35L read with Section 35G of the Act. It was submitted that as per Section 35G of the Act, the Appeal would lie to High Court from every order passed in Appeal by the Tribunal, not being an order relating, among other things, to the determination of any question having relation to the rate of duty of excise or to the value of goods for the purpose of assessment. It was submitted that as per Section 35L(b) of the Act, an Appeal would lie to the Hon ble Supreme Court arising from order passed by the Appellate Tribunal relating, among other things, to the determination of any question having relation to the rate of duty of excise or to the value of goods for purpose of assessment. 7.1 It was subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions of the exemption and in both the situation, the Hon ble Supreme Court held that the Appeal would be maintainable before the High Court as per Section 35G of the Act. 9. Having heard the learned advocates for the respective parties, we are deciding the preliminary objections first; as to whether the Appeal would lie before this Court on the proposed questions of law or not. 10. So far as the Appeal filed by the respondent assessee before the Tribunal is concerned, the respondent assessee challenged the order in original confirming the demand as per Notification No. 12/2012-CE dated 17.3.2012 which does not include the RMC and the Tribunal has allowed the Appeal on the ground that the show cause notice issued by the appellant revenue was time barred. So far as the Appeal filed by the appellant - revenue is concerned, it challenged the dropping of the demand on the basis of the Notification No. 12/2016-CE dated 1.3.2016 and the Appeal was dismissed by the Tribunal on both the grounds that the notice was time barred as well as the interpretation of the Notification No. 12/2016-CE dated 1.3.2016. Therefore, we are of the opinion that in the interest of justice, both the Appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific 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 Nil - ; 12. The Tribunal in relation to the aforesaid Notification has held as under : From the above notification not only the Concrete Mix but also the Ready Mix concrete (RMC) manufactured at the site of construction for use in construction work at such site is exempted. The revenue in their appeal contends that the assessee are not only consuming the Ready Mix Concrete (RMC) in their factory at site but part of the Ready Mix Concrete (RMC) are sold outside the factory. It was contended by the revenue that to become eligible for this exemption, it is necessary that entire Ready Mix Concrete manufactured at site should be used at such site and if any part of it cleared outside, the condition as given in the above explanation is violated. 4.6 We do not agree with this contention of the revenue for the reason that the exemption is always qua the goods not qua the factory, accordingly, only those goods which are solely used at the site of construction are exempted and the goods which are not used in the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal has merely held that in the facts of the case, the interpretation which was canvassed on behalf of the appellant revenue that the entire goods manufactured at the site which are required to be used for the construction site only, is not provided in the Notification. Meaning thereby that the Tribunal has considered the applicability of the Notification to the exemption of excise duty on RMC used by the respondent assessee on the site is considered. The Tribunal has also held that the respondent assessee has paid the excise duty on the RMC which is cleared outside the construction site and sold to other third party. In such circumstances, as per the provision of Section 35L (b) read with Section 35G of the Act, the Appeal would lie before the Hon ble Supreme Court as held by the Hon ble Apex Court in the case of Navin Chemicals MFG Trading Co. Ltd. (supra), in which the Hon ble Supreme Court has held as under : 11. It will be seen that Sub-section 5 uses the said expression 'determination of any question having a relation to the rate of duty or to the value of goods for the purposes of assessment' and the Explanation thereto provides a definition of it 'for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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