TaxTMI 
TaxTMI 
2013 (4) TMI 27
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....399/8439120 of Central Excise Tariff Act, 1985 and were required to pay Excise duty @ 16% since their product is not a 'Power driven pump' but a part of Centrifugal Pump as no motor or engine was attached to it. A demand proposing recovery of differential Excise duty of Rs. 44,33,459/- (for the period March 2003 to March 2004 and April 2006 to November 2006) and Rs. 19,84,775/- (for the period December 2006 to October 2007) respectively totalling to Rs. 64,18,234/- was issued under proviso to Section 11A(1) of Central Excise Act, 1944, interest under Section 11AB and imposition of penalty under Section 11AC ibid read with Rule 25 of Central Excise Rules, 2002 and also proposed imposition of penalty on Shri Kiran P. Mangalwedhekar, Director of the appellant company. Both the Show Cause Notices were adjudicated by the Additional Commissioner vide the impugned order confirming the demand of Rs. 64,18,234/- along with interest, imposing penalty equal to duty on the appellant company and also imposing penalty of Rs. 10 lakhs on the Director of the appellant company. 3. Aggrieved by such an order confirming the demand, the appellant preferred an appeal before first ap....
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....is his submission that the benefit of Notification No. 10/2006-C.E., dated 1-3-2006 should not be denied to them. 5. Ld. SDR, on the other hand, would read the very same Sr. No. 17 of General Exemption Notification No. 10/2006-C.E., dated 1-3-2006 and submit that the intention of the Government was to exempt the power driven pump, primarily designed for handling water viz. Centrifugal Pumps etc. It is his submission that once the description in the notification talks about the power driven pump, it has to be along with electric motor as otherwise the pumps manufactured by the appellant would not be a power driven pump but only a Centrifugal Pump. It is his submission that the wordings in the notification should be construed strictly as it is an exception carved out from the normal law. It is his submission that for the purpose that the exemption notification should be construed strictly, he would rely upon the judgment of Hon'ble Apex Court in the case of Hari Chand Shri Gopal - 2010 (260) E.L.T. 3 (S.C.). He would also rely upon the judgment of the Tribunal in the case of Dura-Metallic (India) Ltd. - 1997 (89) E.L.T. 778 (Tribunal) and in the case of Honda Siel Power Produ....
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....cified in the corresponding entry in column (2) of the said Table (hereinafter referred to as the said goods), from so much of the duty of excise leviable thereon under the First Schedule to the Central Excise Tariff Act, as is in excess of the amount calculated at the rate specified in the corresponding entry in column (4) of the said Table. Explanation I. - For the removal of doubts, it is clarified that a manufacturer who has availed of full exemption under Notification No. 8/2003-Central Excise, dated the 1st March, 2003, published in the Gazette of India vide number G.S.R. 129(E), as the case may be, in any financial year, is permitted to avail this exemption in the same financial year. Explanation II. - For the purposes of this notification the "retail sale price"-means the maximum price at which the excisable goods in packaged form may be sold to the ultimate consumer and includes all taxes, local or otherwise, freight, transport charges, commission payable to dealers and all charges towards advertisement, delivery, packing, forwarding and the like, as the case may be, and the price is the sole consideration for such sale. Explanation III. - For the purposes of this....
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.... the list above shall not include Foley Balloon Catheters 8% 27. 9004 Sunglasses for correcting vision and goggles 8% 28. 9018 All goods (other than parts and accessories thereof) 8% 29. 9019 All goods (other than parts and accessories thereof) 8% 30. 9022 All goods for medical, surgical, dental and veterinary use (other than parts and accessories thereof) 8% 31. 9405 50 31 Kerosene pressure lantern Nil 32. 9501 All goods (other than parts and accessories thereof) Nil 33. 9502 All goods (other than parts and accessories thereof) Nil 34. 9503 All goods (other than parts and accessories thereof) Nil 35. 9603 21 00 Toothbrushes 8% 36. Any Chapter Waste and scrap arising during the course of manufacture of the goods specified against S. No. 1 to 35 above (except S. No. 18, 23, 27 and 35) Nil LIST 1 (See S. No. 26 of the Table) (1) C.A.M. stimulator (2) Contact lens lathe (3) Contact lens polishing machine (4) Contact lens thickness measuring gauge (5) Corneal Anesthesiometer (6) Cryo-lathe (7) Dark adaptometer (8....
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.... given by the lower authorities for denial of exemption notification to the appellant is on the ground that the notification provides exemption only when pumps are power driven i.e. the pumps should have motors attached to them. It is to be noted that once the pump is designed and manufactured "primarily for handling of water", it becomes eligible for exemption, as the heading in notification specifically talks about the Centrifugal Pumps (horizontal or vertical). The said Centrifugal Pumps, as manufactured by the appellant, can be used for some other purpose, is not brought on record by the Revenue, while it is the claim of the appellant that such Centrifugal Pumps manufactured by them can be used only and designed for the purpose of for handling water. It is to be noted that the characteristics of the Centrifugal Pumps always remains the same whether the motor/engine is attached to it or not. The contention of the ld. Counsel that the engine/motor is not a part of the pump, has a strong force as the entry in the exemption notification, though talks about the power driven, does not specify what would power driven pump mean. Be that as it may, the said entry in exemption notificati....
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....No. 56/95, dated 16-3-1995 will be admissible to the whole pump set." 12. On reading of the above given clarification, it is to be noted that C.B.E. & C. is also of the view that the power driven pump sets are also classified under Chapter Heading No. 84.13 if such pump sets are primarily meant for handling water. 13. Once the fact that the product manufactured by the appellant with or without motor gets classified under Chapter Heading 84.13 and if it is undisputed that such pumps are primarily for the purpose of handling water, then the denial of exemption notification to the appellant would be incorrect. 14. As regards the interpretation of the exemption notification, is a similar issue in respect of whether concrete mix manufactured at the site of construction for use in the construction work at site would include ready mix concrete or not, was in dispute which was referred to Larger Bench. The Tribunal in the Larger Bench in the case of Chief Engineer Ranjit Sagar Dam - 2006 (198) E.L.T. 503 (Tri.-LB) (wherein I was one of the Member), has specifically held that when the exemption notification exempts concrete mix which includes ready mix concrete, the ....
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....98 and also imposed the penalty and interest was also sought to be recovered from the appellants. 3. The learned Senior Advocate appearing for the appellants contends that the product manufactured by the appellant would not get covered under the Sub-heading as Ready Mix Concrete. It was submitted that the product "Ready Mix Concrete" and the "Concrete Mix" are the same, and reliance was placed on Standards IS 4926 : 2003 and IS 456 : 2000 as issued by Bureau of Indian Standards. It was submitted that the Standards for Concrete Mix are covered under the IS 456 : 2000, which lays down the procedure for "Plain and reinforced concrete - code of practice" in detail, while IS 4926 : 2003 lays down the standard of "Ready Mixed Concrete - Code of practice," wherefrom it would be noticed that the selection and quality of ingredients like cement, gravel chemical, etc. are laid down in detail in IS 456 : 2000 and IS 4926 : 2000 relies upon the earlier Standards IS 456 : 2000 for quality of ingredients. It was urged that there is no difference between "plain & reinforced concrete" and "Ready Mixed Concrete". It was also contended that the benefit of the exemption Notification No. 4/97 ....
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....te" Nil 8. During the relevant period i.e. from 1-3-97 to 1-6-98 the Chapter Heading Nos. were as under :- "1996-97 38.22 3823.00 Prepared binders for foundry moulds or 20% cores; chemical products and preparations of the chemicals or allied industries (including those consisting mixtures of natural products), not elsewhere specified or included; residual products of the chemical or allied industries, not elsewhere specified or included 1997-98 38.24 Prepared binders for foundry moulds or Cores; chemical products and preparations of the chemical or allied industries (including those consisting of mixtures of natural products), not elsewhere specified or included; Residual products of the chemical or allied industries, not elsewhere specified or included 3824.10 - Phosphogypsum 13% 3824.20 - Ready mix concrete 13% 3824.90 - Others 18%" 9. It can be seen from the above that the "concrete mix", and "Ready mix concrete" get covered under Chapter No. 38, and it is not in dispute. 10. General exemption Notification No. 4/97-C.E. was issued by the Central Government by the powers conferred by sub-s....
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....-heading Nos. specifically. If the law makers did not intend to exempt "Ready Mix Concrete" falling under Chapter Sub-heading No. "3824.20/3824.90" they would have categorically said so, by indicating in the serial No. 51 only the specific heading Nos. which are eligible for exemption. Since, the notification intends to cover all the "Concrete Mix manufactured at the site of construction for the use in construction work at such site", it would also cover the "Ready Mix Concrete" in its ambit of exemption. 11. In the case of Larsen & Toubro Ltd., before the Hon'ble High Court of Judicature at Madras the Additional Central Government Standing Counsel conceded the issue. It is recorded by the Hon'ble High Court at Para 6 which reads as under :- "At the hearing the learned Additional Central Government Standing Counsel specifically took a stand that Ready Mix Concrete is not leviable even if it is manufactured at the site of construction, but it is leviable only if such Ready Mix Concrete, which is manufactured in a place other than the place of construction for the one's own purpose or for its use somewhere else or by sale and by transportation of the same from Ready Mix Pl....