AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (9) TMI 92
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.... Mix Concrete' (RMC) does not amount to 'manufacture' and, therefore, is not liable to excise duty. This Court in M/s. Larsen & Toubro Ltd. & Anr., ECC Construction Group v. Commissioner of Central Excise, Hyderabad, 2015 (10) SCALE 476 = 2015 (324) E.L.T. 646 (S.C.), otherwise holding that RMC would amount to 'manufacture' and, therefore, liable for payment of excise duty. The Judgment of the Tribunal has to be, therefore, set aside on this ground alone. 2. We, however, find that the respondent had taken a specific plea before the Adjudicating Authority that the produce in question is not RMC but only 'Mix Concrete' (MC). This contention was rejected by the Adjudicating Authority in Order-in-Original passed by it. The assessee had challenged those findings before the Tribunal. However, the Tribunal did not go into this aspect as it proceeded on the basis that even if it was RMC produced at site, the same shall be entitled to exemption under the requisite Notification. In view thereof, the matter needs to be remanded back to the Tribunal to decide the aforesaid factual aspect viz. whether the produce in question is RMC manufactured at site or is it MC as contended by....
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.... the customers and the same is discharged at site for use in further construction of building etc. "6. The matter has been examined and concrete mix implies the conventional method of concrete production conforming to the ISI Standard 456-1978, which is produced and used at the site of construction. It is this concrete mixture, manufactured at the site of construction which is fully exempt vide Notification No. 4/97-C.E., dated 1-3-1997 (S. ,N. 51). It is thus clarified that ready mix concrete or pre-mixed concrete, by its very nature, cannot be manufactured at the site of construction and is brought from the factory of manufacturer for use in construction." 2.1 On the strength of above Circular, the learned Counsel argued that - (a) The RMC should be manufactured in a plant and plant should consist of stone crushers, conveyors, vibrator screens, sand mill, central batching plant. (b) The chemicals are added to RMC to increase the shelf life. (c) The RMC is required to be loaded on a transit mixer for the purpose of transportation to the site of the customer. (d) By its very nature, RMC cannot be manufact....
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....ention the terms "ready mix" before the word "concrete" in his statement. 2.5 He further argued that the entire demand is beyond normal period of limitation. He argued that the there was doubt regarding the taxability on RMC and its eligibility to its exemption. He relied on the decision of Continental Foundation Jt. Venture - 2007 (216) ELT 177 (S.C.) to assert that there was a genuine confusion in the field at the material time and therefore there could not be any intention to evade duty. "11. Factual position goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by th....
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....ation. 4.2 Hon'ble Supreme Court in the case of Larson & Toubro (supra) has clearly held as follows:- "9. It is clearly discernible from the above that the Legislature has treated RMC and CM as two different products. Whereas CM has generally been covered by the exemption notification, such an exemption is not extended to RMC. Even when doubts were raised from time to time about the two products, Government has always been clarifying and emphasizing that the two products are different and RMC attracts excise duty and is not covered by the exemption notification. The classification entries have also been enacted accordingly. We may also mention at this stage itself that the duty which was demanded from L&T by issuing show-cause notices cover the period from May 2, 1996 to February 28, 1997 and from March 1, 1997 to March 19, 1998. 18. We may point out at the outset that the case which is now sought to be set up by the assessee, namely, CM and RMC are one and the same product, was never the case of the assessee. On the contrary, in reply dated June 12, 1998 to the letter dated May 18, 1998 issued by the Assistant Commissioner of Central Excise, Anantpur, th....
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....her treatment before being placed in the position in which it is to set and harden. The prepared chassis which was mounted was to ensure that when the concrete mix is taken to the actual place of construction, it keeps rotating. It is also significant to mention that for producing the concrete mix, material used was cement, aggregates, chemically analysed water and admixtures, 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....
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....d pressure of completing projects on time, consumption of RMC has steadily grown replacing the conventional/manual concreting works. Today leading cement companies have entered the field by setting-up RMC plants in which L&T ECC is one. RMC is slowly replacing site or hand mixed concrete because of the distinct advantages due to technology, speed and convenience. Furthermore, absence of the need to deal with multiple agencies 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. 4.3 In view of the above, the Hon'ble Supreme Court has answered a few questions and has clearly held that RMC and concrete mix are two different product. Exemption under Notification 4/97 dated 01.03.1997 is availabl....