At, Customs Excise Service Tax Appellate Tribunal West Zonal Bench At Mumbai
By, THE HONOURABLE MR.P.G. CHACKO
By, MEMBER (JUDICIAL) & THE HONOURABLE MR. S.K. GAULE
By, MEMBER (TECHNICAL)
Shri A.K. Singh, Advocate. Shri B.K. Singh, Jt CDR
Per: Mr P.G. Chacko
1. These appeals have arisen before us consequent upon a remand ordered by the Hon ble Supreme Court vide Order dated 10.4.2008 in Civil Appeal Nos 5994-5995 of 2007 (Commissioner of Central Excise, Belapur vs Simplex Infrastructures Ltd and Another).
2. One of the appellants is M/s Simplex Infrastructures Ltd (hereinafter referred to as the assessee). A Director of the company is the other appellant. The appeals are directed against the Commissioner?s order wherein demand of Central Excise duty of over Rs 1.40 crores was confirmed against the assessee for the period from March 1997 to March 1998 in respect of Ready Mix Concrete (RMC for short) classified under SH 3824.20 and equal amount of penalty was imposed on them under Section 11AC of the Central Excise Act besides a penalty of Rs 50 lakhs imposed on the Director of the company under Rule 209A of the Central Excise Rules, 1944. In view of the Hon?ble Supreme Court?s order, the learned Counsel for the appellants submits that the classification of RMC under SH 3824.20 and its dutiability in terms thereof are no longer in dispute. It is submitted that what survives for consideration is the assessee?s plea for the benefit of Notification No 4/97-CE dated 1.3.1997 whereunder concrete mix manufactured at the site of construction, for use in construction work at such site is chargeable to nil rate of duty. The learned Counsel submits that RMC was manufactured by the assessee at the construction site of their customer during the period of dispute and therefore, the benefit of the above notification is available to them. The learned Jt CDR, on the other hand, points out that the question whether the subject goods was manufactured at the construction site for use in the construction work was not examined by the Commissioner. It is submitted that, in view of the Hon?ble Supreme Court?s remand order, the adjudicating authority has to examine the said question and pass a speaking order thereon.
3. After considering the submissions, we are of the view that the lower authority should address the above question also. It appears from the impugned order that, though the assessee?s claim of exemption under Notification No. 4/1997-CE was noted by the learned Commissioner, he did not consider the question whether the subject goods was manufactured at the construction site and used in the construction work at the same site, which was the significant condition for claiming the benefit of nil rate of duty under the notification. The learned Commissioner classified the goods under SH 3824.20 and held the assessee liable to pay duty thereon with effect from 1.4.1997. He did not render any finding on the aforesaid question. In the Supreme Court?s remand order, it was noted that there was dispute between the assessee and the Revenue as to whether RMC was manufactured at the construction site. It was also noted that the Commissioner, in the impugned order, had held that RMC had been manufactured at Pen and Padghe and thereafter moved to the construction site. Apparently, Their Lordships also took note of the plea made by the assessee that RMC had been manufactured at the construction site and used at the same site. It is this dispute which requires to be adjudicated upon by the lower authority which has got to take a decision on the aforesaid question after giving both sides a reasonable opportunity of adducing additional documentary evidence and of being personally heard.
4. We note that the Hon?ble Supreme Court has already restricted the show-cause notice to the period from 10.2.1998 to 31.3.1998, which has got to be bo
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rne in mind by the adjudicating authority while taking up the matter for de novo adjudication. 5. In the above view of the matter, we set aside the impugned order and allow these appeals by way of remand with a direction to the lower authority to pass a speaking order on the aforesaid issue after giving both sides an opportunity of adducing documentary evidence and of being personally heard.