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TMI Blog2024 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... ivity is of job work or not. In the present case when the activity was undertaken on the raw material supplied by the builder the processor is nothing but the job work. From perusal of the definition of job-work and job-worker, it is clear that the job-work and job-worker has been defined clearly with reference to the processing of raw material or sami-finished goods supplied to the job-worker. The definition does not make any reference to the plant and machinery or its ownership. As the appellant was undertaking clearances of the goods manufactured on behalf of builder, the duty was required to be assessed and paid by the appellant even if he was a job worker. Extended period of limitation - HELD THAT:- On account of change of opinion in view of the decision of Hon ble Supreme Court in the case of Larsen and Tubro Ltd. [ 2015 (10) TMI 612 - SUPREME COURT] , extended period could not have been invoked for making the demand as has been rightly held by Commissioner (Appeals) and the demand has been confined to the normal period of limitation. Commissioner (Appeals) has by the impugned order directed the original authority to calculate the demand of duty and interest payable for the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigations were initiated against M/s Rudra Buildwell Infra Pvt. Ltd., who vide letter dated 19.11.2015 informs as follows:- (i)the plant and machinery installed at site is the property of Ahuja Concrete and they have no details of the same, (ii)about the process of RMC, they want to submit that they don't have any details of the same because they provide the material required to produce concrete mix to Ahuja Concrete and they take care of the entire process with their machines and labour to manufacture the same; (iii)value of the job work done by Ahuja Concrete from November 2014 September 2015 is Rs. 94,13,672/- (including Service Tax): (iv)they have not purchased or sold any RMC from their premises. 2.2 Thereafter, investigations were initiated against the appellant and after completion of investigation, a show cause notice dated 30.12.2016 were issued to the appellant, asking them to show cause as to why:- (i)Central Excise Duty amounting to Rs.39,38,803/- (Thirty Nine Lakh Thirty Eight Thousand Eight Hundred Three only) not paid by them on the RMC valued at Rs.6,40,07,241/- manufactured by them at the site 'Victory One Amra' at GH-05C, Sector-16, Greater Noida ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Counsel submits that- Appellant was manufacturing RMC at the construction site as per the requirement of and out of raw material supplied by customer (M/s Rudra Buildwell Infra Pvt. Ltd.), so they were just acting as job-worker for the said builder. If any Central Excise duty was to be determined, it was to be from the builder and not from the job-worker. Reliance is placed by the decision of this Tribunal in the case of Suvikram Plastex P Ltd. vs. CCE, reported in 2008(225)ELT282(Tri. Bang.). Appellant was discharging service tax liability on the job work done by them and filing service tax returns which was never objected by the department. No excise duty could be demanded as payment of service tax on the activity on which payment of service tax was not objected. Reliance is placed by the decision of this Tribunal in the case of Osnar Chemical P. Ltd. vs. CCE reported in 2009 (240) ELT115 (Tri.Bang.) and KR Packaging vs CCE reported in 2017(51)STR438(Tri. Del.). If duty was to be demanded it was at the concessional rate of duty as no cenvat credit was paid and the service tax paid by the appellant was to be adjusted towards the same. The SCN was issued on 30.12.2016 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nery or its ownership. 4.4As per explanation to Rule 10A of Central Excise Valuation (Determination Of Price Of Excisable Goods) Rules, 2000:- [RULE 10A. Where the excisable goods are produced or manufactured by a job-worker, on behalf of a person (hereinafter referred to as principal manufacturer), then, - (i)in a case where the goods are sold by the principal manufacturer for delivery at the time of removal of goods from the factory of job-worker, where the principal manufacturer and the buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the transaction value of the said goods sold by the principal manufacturer; (ii)in a case where the goods are not sold by the principal manufacturer at the time of removal of goods from the factory of the job-worker, but are transferred to some other place from where the said goods are to be sold after their clearance from the factory of job-worker and where the principal manufacturer and buyer of the goods are not related and the price is the sole consideration for the sale, the value of the excisable goods shall be the normal transaction value of such goods sold fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res, namely, retarders and plasticizers. As the L T was constructing cement plant of a very high quality, it needed concrete also of a superior quality and to produce that aforesaid sophisticated and modernised process was adopted. The adjudicating authority in its order explained the peculiar feature of RMC and the following extracts from the said discussion needs to be reproduced : 32. Central Excise Tariff does not define Ready Mix Concrete. Therefore, as per the established case- laws on the subject it is necessary to look for the meaning of this expression as understood in the market viz., as understood by the people who buy and sell this commodity. In this connection it would be relevant to refer to the following excerpts from an article - what is ready mix concrete, appearing in internet website of National Ready Mix Concrete Association, USA :- (i)Concrete, in its freshly mixed state, is a plastic workable mixture that can be cast into virtually any desired shape. It starts to stiffen shortly after mixing, but remains plastic and workable for several hours. This is enough time for it to be placed and finished. Concrete normally sets or hardens within two to 12 hours after m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for procuring and storing cement, sand, blue metal and water as well as the absence of the need to handle unorganized labour force are factors influencing customers to go in for RMC in preference to CM. 21 .In this backdrop, the only question is as to whether RMC manufactured and used at site would be covered by notification. Answer has to be in the negative inasmuch as Notification No. 4, dated March 1, 1997 exempts only Concrete Mix‟ and not Ready Made Mixed Concrete‟ and we have already held that RMC is not the same as CM. 4.7In terms of the decision of Hon ble Supreme Court demand of duty has been raised. Prior to this decision the decision of Hon ble Madras High Court in the matter was being followed and the duty was not being paid. There is no dispute about the fact that appellant was paying the service tax as job-worker on the services provided to the builder. 4.8As the appellant was undertaking clearances of the goods manufactured on behalf of builder, the duty was required to be assessed and paid by the appellant even if he was a job worker. 4.9However, we find that on account of change of opinion in view of the decision of Hon ble Supreme Court as above exte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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