Custom, Excise & Service Tax Tribunal
Cce,Delhi-Ii vs M/S.Consolidated Construction ... on 28 October, 2016
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing:18.10.2016
Date of Decision:28/10/2016
Excise Appeal No.58926 & 59345/2013-EX(DB)
[Arising out of Order-in-Appeal No.97/CE/D-II/2013 dated 26.04.2013 and 115/CE/D-II/2013 dated 3.6.2013 passed by the Commissioner of Central Excise (Appeals), New Delhi.]
CCE,Delhi-II Appellant
Vs.
M/s.Consolidated Construction Consortium Ltd. Respondent
Appearance:
Rep. by Shri R.K. Manjhi, DR for the appellant.
Rep. by none for the respondent.
Coram: Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. B. Ravichandran, Member (Technical) Final Order No.54623-54624/2016 Per B. Ravichandran:
These appeals are by the Revenue against order dated 26.04.2013 of Commissioner (Appeals), Delhi-II. The issue involved is the eligibility of the respondent for exemption under Notification no.4/2006- dated 1.3.2006 (Sl.No.74). The respondent are manufacturing Ready Mix Concrete falling under Heading No.38245010. Serial No.74 of Notification No.4/2006 gave exemption to the products description Concrete mix manufactured at site of construction for use in construction work at such site. The Department by entertaining a view that the respondent manufactured only Ready Mix Concrete and not Concrete Mix proceeded to demand central excise duty from the respondent. Against the original order confirming the demand, the appeal was filed resulting in the impugned order. The Commissioner (Appeals) dropped the demand and allowed the appeal of the respondent. The Revenue is in appeal against this order.
2. We have heard ld. AR for the Revenue. None appeared on behalf of the respondent. A letter dated 15.10.2016 was received from the Counsel seeking adjournment. However, we have examined the appeal papers with the help of ld. AR. We note that the impugned order recorded the following factual findings:-
Therefore, merely using a different name for the same product cannot result in a different product thereby leading to denial of exemption to which the appellant are lawfully entitled and Notification No.4/2006-CE dated 1.3.2006 having referred to the concrete mix as filling under Chapter Heading 38 of the Central Excise Tariff Act it is but necessary to treat the said entry as only referring to the RMC since Concrete Mix if left unused would harden and particularly in the absence of any other entry in the said chapter referring to the Concrete mix, as otherwise notification no.4/2006-CE would be rendered in fructuous or meaningless which is not permissible under law as has been laid in a plethora of judgments of the courts and tribunals. The batching plant of the appellant is located within the site of construction and the RMC manufactured therein is being utilized for the said ONGC project only and they appeared to have fully complied with the requirement of notification no.4/2006-CE dated 1.3.2006 (S.No.74). It is submitted that it is by well settled position of law that when two notifications are in force, it is purely the option of the assessee to choose the one beneficial to him.
3. Further, the Commissioner (Appeals) relied on the Boards Circular dated 18.5.1999 to hold that the expression Site may not be given restrictive meaning and shall include in premises made available to the manufacturer of goods falling under Heading 68.07 by mention in the contract. It was observed that RMC Plant was set up for specific purpose in the vicinity of construction site. As such, there can be no denial of exemption to the respondent. We note that the Revenue is emphasizing a difference between Concrete Mix and Ready Mix Concrete on the ground that they have different IS Standards. It was contended that these two are different product and the exemption given to concrete mix cannot be extended to ready mix concrete. We find that in the absence of material evidence to support the contention of the Revenue, the existence of different IS Standards or CETA Heading is not sufficient enough to deny the exemption. The exemption notification refers to concrete mix falling under Chapter 38 and not restricted to a specific sub-heading of the Chapter. We find that there is nothing in the present appeal to persuade us to interfere with the findings recorded in the impugned order. Accordingly, the appeals by Revenue are dismissed.
[Order pronounced on 28/10/2016] ( Justice Dr. Satish Chandra) President ( B. Ravichandran ) Member (Technical) Ckp.