Per M. V. Ravindran :

This matter is referred to Larger Bench by a division Bench in its referral Order No. 207/05-Ex dated 26.7.2005. At Para No. 2 the referral Bench noted as follows:-

"It is the contention of the revenue that the issue remains covered against the assessee by the decision of this Tribunal in the case of Continental Foundation Joint Venture vs. CCE, Chandigarh - 2002 (150) ELT 216. Learned counsel for the assessee also fairly concedes this position, even though he seeks to distinguish that decision on some other grounds like there being no sale or purchase.

We note that the exemption is in regard to "concrete mix manufacturer" at side and used at site. Perusal of the Indian Standard specifications and other materials produced before us would appear to suggest that there is no difference between concrete mix and ready mix concrete. After all, concrete mix for construction is the same irrespective of method of preparation. In this view of the matter, we are not able to agree with the decision in the case of Continental Foundation Joint Venture vs. CCE, Chandigarh. That decision would appear to require re-consideration by a Larger Bench. Registry is, therefore, directed to place the file before the Hon'ble President for the constitution of a Larger Bench."

2. In this case the appellant was executing a project of construction of a Dam Known as "Ranjit Sagar Dam". The appellants in the course of construction of Dam, prepared concrete mix at site and used the same in the Dam construction. The Revenue demanded duty on the said concrete mix on the ground that the said concrete mix would be covered under the Tariff Sub-heading No. 3824.90 of Central Excise Tariff 1985 relying upon Central Board of Excise & Customs Circulars dated 1.2.96 [reported in 1996 (12) RLT M97], 24.6.97 [reported in 1997 (21) RLT M27]and 6.1.98 and decision of the Tribunal in the case Continental Foundation Joint Venture vs. CCE, Chandigarh - 2002 (49) RLT 791 (CEGAT-Del.)=2002 (150) ELT 216. It is the contention of the appellant that they are eligible for exemption from payment of duty vide Serial No. 51 of Notification No. 4/97. The adjudicating authority relying upon the Board's Circular and the case of Continental Foundation classified the concrete mix under Sub-heading No. 3824.90 and confirmed the demand for the period 1.3.97 to 1.6.98 and also imposed the penalty and interest was also sought to be recovered from the appellants.

3. The learned Senior Advocate appearing for the appellants contends that the product manufactured by the appellant would not get covered under the Sub-heading as Ready Mix Concrete. It was submitted that the product "Ready Mix Concrete" and the "Concrete Mix" are the same, and reliance was placed on Standards IS 4926:2003 and IS 456: 2000 as issued by Bureau of Indian Standards. It was submitted that the Standards for Concrete Mix are covered under the IS 456:2000, which lays down the procedure for "Plain and reinforced concrete - code of practice" in detail, while IS 4926:2003 lays down the standard of "Ready Mixed Concrete-Code of practice", wherefrom it would be noticed that the selection and quality of ingredients like cement, gravel chemical, etc. are laid down in detail in IS 456 : 2000 and IS 4926:2000 relies upon the earlier Standards IS 456:2000 for quality of ingredients. It was urged that there is no difference between "plain & reinforced concrete" and "Ready Mixed Concrete". It was also contended that the benefit of the exemption notification No. 4/97 is available to the appellants as the concrete mix is manufactured by the appellants "at the site of construction" of a Dam. Intervening Advocate also points out that in Writ Petition No. 15035 of 1995 in the Hon'ble High Court at Madras, the department has accepted and conceded that Ready Mix concrete manufactured at site is eligible for exemption and now department cannot take a different stand here. He also submits that in an identical issue in the ca