Customs, Excise and Gold Tribunal - Mumbai
Bg Shirke Construction Technology Ltd. vs Cce on 9 March, 1999
Equivalent citations: 1999(84)ECR228(TRI.-MUMBAI)
ORDER Gowri Shankar, Member (T)
1. Application is for waiver of deposit of Rs. 19.13 lakhs and penalty under Section 11A of the same amount.
2. The advocate for the applicant explains that the applicant is a builder, and for use in its buildings it manufactured at site concrete mix. Duty has been demanded on such concrete mix manufactured between 25.9.1995 and 21.11.1996 by notice dated 3.1.1997. He says that considerable confusion prevailed all along regarding liability to duty on concrete. Prior to issue of the Board Circular No. 237/71/96, there was a general impression that concrete, being a mixture of cement, sand and other goods, was not liable to duty, since it has a short shelf-life and, unless kept in an agitator becomes hard. By this circular the Board has clarified that ready mix concrete is chargeable to excise duty which is marketable de spite having a short shelf-life, and classifiable under heading 38.23. This circular was kept in abeyance by the Member of the Board in his letter to the Commissioner dated 22.1.1997, in which he has clarified that no duty is leviable on ready mix concrete produced at site. The later circular dated 23.6.1997 of the Board withdrew this letter, and made a distinction for a first time between ready mix concrete and concrete mix and clarified that exemption available under notification 4/97 was available only to concrete mix manufactured at site for construction or use in construction at site and not for ready mix concrete manufactured at site. The difference between the two products has been attempted to be explained by Board circular dated 6.1.1997. He contends that the products manufactured at site for use in construction have been wrongly held to be ready mix concrete. The applicant has strong case on limitation. The Board itself has two minds about the difference between the two and applicability for the exemption for both products. Further the advocate for the applicant contends that since in a similar matter the High Court kept its order dated 8.9.1998 in Writ Petition No. 1743 of 1998, the show cause notice to be kept in abeyance. Lastly he contends that the demand should be prospective and from the date of citing the Supreme Court judgment in CCE v. Cotspun Ltd. 1999 (80) ECR 4.
3. The departmental representative contends that there is a clear distinction between a concrete mix and ready mix concrete as explained in the Board circular and that each of these covered by a separate Indian standard specification. He says that only a part of the period is barred by limitation.
4 It is difficult for us prima facie to perceive the distinction sought to be made between ready mix concrete and concrete mix. The difference appears to be more one of whether a product is manufactured for use by the manufacturer, or is sold by him. The I.S. specification in question seems to make a distinction more on this basis and not between concrete and concrete mix. Apart from this, the fact that the letter from the Member of the Board dated 22.1.1997 itself conveyed clearly that exemption would be available to ready mix concrete made at site, supports prima facie the applicants view that so far as the material mix made at site is concerned made lack of considerable clarity. The applicant could have genuinely believed that the product manufactured is not liable to duty. Its case is further supported by the High Court's order prima facie. Accordingly we consider it appropriate to ask the applicant to deposit Rs. 2 lakhs within a month from today; thereupon we waive deposit of remaining amounts of duty and penalty.
5. Compliance on 16th March, 1999.
(Dictated in Court).