Tribunal clarifies Ready Mix Concrete vs. Concrete Mix classification, remands for re-determination.

The Tribunal remanded the case to the original authority for re-determination, emphasizing the distinction between Ready Mix Concrete (RMC) and Concrete Mix. The authority must ascertain the product's classification based on production method and usage, and consider unjust enrichment if a refund is due. The Revenue's appeal was allowed for further review in light of the Supreme Court's guidance on RMC and Concrete Mix classification.

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Issues Involved:
1. Classification of the product as Concrete Mix or Ready Mix Concrete (RMC).
2. Applicability of exemption under Notification No.04/97-CE dated 01.03.1997.
3. Consideration of unjust enrichment before granting a refund.

Detailed Analysis:

1. Classification of the Product:
The primary issue revolves around whether the goods produced by M/s ACC Concrete Ltd. within the respondent's factory premises should be classified as Concrete Mix or Ready Mix Concrete (RMC). The Department contended that the product is RMC, which falls under Central Excise Tariff heading No.3824.20 and is subject to excise duty. In contrast, the respondent argued that the product is Concrete Mix, exempt from duty under Notification No.04/97-CE. The Tribunal referred to the CBEC Circular No.368/1/98-CX, which differentiates RMC from Concrete Mix based on production methods and usage. RMC is defined as concrete delivered in a plastic condition, requiring no further treatment before use, whereas Concrete Mix is produced and used at the construction site.

2. Applicability of Exemption under Notification No.04/97-CE:
The Tribunal examined whether the product manufactured at the site qualifies for exemption under Notification No.04/97-CE dated 01.03.1997. The authorities below had favored the respondent's view that the product qualifies for exemption. However, the Revenue challenged this, citing the distinction between RMC and Concrete Mix. The Tribunal referenced the Supreme Court's decision in the case of Larson & Toubro, which clarified that RMC and Concrete Mix are distinct products, with RMC attracting excise duty and not covered by the exemption notification. The Tribunal emphasized that RMC, even if manufactured at the site, does not qualify for the exemption.

3. Consideration of Unjust Enrichment:
The Department argued that the lower authorities did not consider the aspect of unjust enrichment before granting the refund. The Tribunal agreed that if a refund arises after re-determination, it should be subject to the principle of unjust enrichment, as established by the Supreme Court in Union of India Vs. Solar Pesticide Pvt. Ltd.

Conclusion:
The Tribunal set aside the impugned order and remanded the case to the original authority for re-determination, considering the observations of the Supreme Court regarding the distinction between RMC and Concrete Mix. The original authority is tasked with determining whether the product is RMC or Concrete Mix based on its production method and usage. If a refund is warranted, it must be subject to the principle of unjust enrichment. The appeal filed by the Revenue was allowed by way of remand.

Pronouncement:
The judgment was pronounced in open court on 29.08.2017.

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