Full Judgment
2. The issue of Ready Mix Concrete now classified under 38.23 or it being not levied to duty under Central Excise Act 1944 prior to 1.3.97, when a specific entry was introduced in Central Excise Tariff Act 1985 schedule under heading 3824.20 is no longer res- integer . The issue having been settled in favour of the assesses by the decision in case of Associated Cement Co. Ltd. (2001 (138) ELT 911 (T) & the appeal against this decision dismissed by Supreme Court is reported in 2001 (132) ELT 4106. Therefore all appeals, as regards demands up to 1.3.97 are therefore to be allowed, even if the entity in this case is to be treated as Ready Mixed Concrete, which the appellant does not admit and Revenue insists.
3. Appeal No. E/650/02 covers a demand for the period, 1.1.97 to 5.3.97, vide show cause notice dated 15.6.99 which includes a demand on 97/1MT of such goods is now taken up for decision. It is found :- (i) department has issued show cause notices 2 years prior to the present date 15.6.99, the invocation of the proviso clearance of Section 11A (1) is therefore not called for. Board had issued circular on Ready Mixer Cement, i.e. No. 23717/96 dated 12.8.96 and 315/31/97 dated 23.5.97, which by use of the word 'doubt' therein about the classification of Ready Mix Concrete were existing and which persisted till as is used in Circular No. 368/1/98 dated 6.1.98 (see paragraphs 2 and 5 thereof), which indicate that the issue of doubts absent exigibility was existing and subsisting.
Relying on the case of Empress Mills AIR 1958 341 SC & C.A. Abraham AIR 1961 609 SC, when doubt on the levy exist in the minds of the authority dealing with Administration of Excise Duty and in law, the benefit of 'no reason to invoke the proviso clause of Section 11A' to demand the duty has to go to the appellant in this case. We follow Supreme Court decision in case of Mentha & Allied Products Ltd. (2004 (167) ELT 494) paragraph 10 therefore to conclude that involving the proviso of Section 11A(1) & penalty in the case is not called for.
ii) the lower authorities have concluded that the batching and mixing which was being conducted was completely controlled to arrive at specific parameters of concrete constituents meeting the specific of IS/4926-1976 not for Dry Mix. The affidavits filed were not by experts. The Transit Mixer vehicles were exclusively designed for Ready Mix Concrete and not for DRY MIXES. The contention of removal of Dry Mix was therefore not accepted. The absence of water however is dealt with and met by relying upon Interpretation Rule 2 (a) to confirm the demands. The findings arrived, ignore and do not consider the literature given in the McGraw Mill Dictionary of Scientific and Technical Terms, Merriam Webster's Collegiate Dictionary (Tenth Edition), which all go to indicate the presence of water to be causing and giving the essential character to concrete.
Merely because an hydrous Mixture of cement, sand and stone agglomerates is arrived meeting specification of IS 4926-1976 without water, has to be considered to have reached the essential characteristic of Ready Mix Concrete can not be upheld. The reliance on Rule 2 (a) of Interpretative Rules is not therefore upheld. ISI specification 4926-1976 for the purpose of that Standard define Ready Mix Concrete as:- "Concrete delivered at site or into the purchasers vehicle in a plastic condition and requiring no further treatment before being placed in the position in which it is to be set and hardened" The words "plastic condition" can only mean a shape taking condition, a forming condition. A dry mix of cement sand and stones can not be in plastic condition. Water and other plasticizers give that essential characteristic to Ready Mixer Cement to achieve a 'forming condition'. The goods in dry arid state, being removed in the mixer trucks, are to go to site and are to be mixed with special grade/purity water and plasticizers to bring in 'plastic condition' and setting and hardening, forming, conditional qualities. As removed, in the Trucks, the entity under classification, it does not have 'Plastic condition' or 'setting and hardening capability', therefore it can not be 'Ready Mix Concrete' as per term defined & understood and used in IS 4926-1976. If that be so, the entity 'Dry Mix' is not Ready Mix Cement classified under 3824.20, an or on after 1.03.1997. Before the date, there was no classification available for Ready Mix concrete.
iii) therefore duty demands as made under 3824.20 can not be approved. Penalties as imposed are not to be upheld.Consequently this appeal is also to be allowed along with all the other appeal.