TaxTMI 
TaxTMI 
2024 (10) TMI 719
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....g the material period, as time- barred. (2)I also set aside the penalty imposed on the appellant. (3)I hereby confirm the demand of Central Excise duty payable during the normal period of limitation under Section 11A(1)(a) read with Section 11A(9) of the Central Excise Act, 1944 as effective during the material period and order for recovery along with Interest payable under Section 11AA of the Central Excise Act 1944. The Original Adjudicating Authority shall re- calculate the amount of Central Excise duty and Interest payable as per above order and communicate to the appellant for immediate compliance. The appeals are disposed of on the above terms." 2.1 On the basis of intelligence that various companies engaged in construction of residential complexes and were also manufacturing "Ready Mix Concrete" (RMC) at the site for use in construction without payment of duty. Investigations 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 ....
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...., 1944. (iii)I impose a penalty of Rs.19,69,402/- (Rs. Nineteen Lakh Sixty Nine Thousand Four Hundred and Two only) upon the party under Rule 25 of the Central Excise Rules, 2002 read with proviso to Section 11AC(1) (c) of the Central Excise Act, 1944. However, in terms of Section 11AC(1)(e) of the said Act read with Explanation 1(iii) of Section, the amount of penalty liable to be paid shall be twenty-five percent of the duty confirmed subject to the condition that the payment of duty, interest, if any, and penalty (reduced amount of penalty) is made within thirty days of the communication of the order as mentioned in Para above." 2.4Aggrieved appellant filed appeal before the Commissioner (Appeals), who by the impugned order, referred in para 1 above, disposed of the appeal of the appellant. 2.5Aggrieved appellant have filed this appeal. 3.1We have heard Shri Rajesh Chhibber, Advocate for the appellant and Shri Santosh Kumar, Authorised Representative for the revenue. 3.2Arguing for the appellant learned Counsel submits that- Appellant was manufacturing RMC at the construction site as per the requirement of and out of raw material supplied by custome....
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....nd machinery is not relevant for determination whether the activities undertaken by him is job work or otherwise. It is the relationship between the material supplier and the processor which would determine whether the activity 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. 4.3Rule 2 (n) of the Cenvat Credit Rules defines job work and job worker in following manner:- "job work" means processing or working upon of raw material or semi-finished goods supplied to the job workder, so as to complete a part or whole of the process resulting in the manufacture or finishing of an article or any operation which is essential for aforesaid process and the expression "job-worker" shall be construed accordingly." From perusal of the above definition, 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. 4.4As per explanation to Rule 10A of Central Excise Valuatio....
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.... clause (iii) of this Rule, read with the decision of Hon'ble Supreme Court in the case of Ujjagar Prints [1989 (39) E.L.T. 493 (S.C.)] 4.6Hon'ble Supreme Court in the case of Larsen and Tubro Ltd. 2015 (324) ELT 646 (SC) held as follows:- 19.We are also inclined to agree with the stand taken by the Revenue that it is the process of mixing the concrete that differentiates between CM and RMC. In the instant case, as it is found, the assessee installed two batching plants and one stone crusher at site in their cement plant to produce RMC. The batching plants were of fully automatic version. Concrete mix obtained from these batching plants was delivered into a transit mixer mounted on a self propelled chassis for delivery at the site of construction is in a plastic condition requiring no further 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, ....
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....between Ready Mix Concrete and CM which is conventionally produced. The position which was summed up showing that the two products are different reads as under : "From the literature quoted above it is clear that Ready Mix Concrete is an expression now well understood in the market and used to refer to a commodity bought and sold with clearly distinguishable features and characteristics as regards the plant and machinery required to be set- up for its manufacture and the manufacturing processes involved, as well as its own properties and the manner of delivery. RMC refers to a concrete specially made with precision and of a high standard and as per the particular needs of a customer and delivered to the customer at his site. Apparently due to the large demand resulting from rapid urbanization and 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, absenc....