ORDER
E. Padmanabhan, J.
1. The petitioner prays for the issue of a writ of declaration to declare the impugned circular of the 2nd respondent in No. 315/31/97-CX., dated 23-5-97 as ultra vires of Sections 55-A and 37-B of the Central Excise Act, 1944 and Article 265 of the Constitution of India insofar as the petitioner is concerned.
2. Heard Mr. Arvind P. Datar, learned senior counsel appearing for the petitioner and Mr. K. Veeraraghavan, learned Additional Central Government Standing counsel for the respondents. With the consent of counsel for either side, the writ petition itself is taken up for final disposal and arguments were advanced. It is also to be pointed out that in the light of the stand taken by the counsel for respondents, it may not be necessary to examine the substantial contention advanced by the learned senior counsel for the petitioner seeking the relief of declaration in respect of the Notifications concerned.
3. The writ petitioner had set up an Unit for manufacture of Ready Mix Concrete at Manapakkam and has registered itself with the Central Excise. According to the respondents, the Ready Mix Concrete manufactured by the petitioner is not meant to be used at the site itself and they have to be cleared and sold to various other construction companies. The product is transported through the vehicle fitted with mixing drum specifically designed to carry Ready Mix concrete from the petitioner’s unit to various construction sites. The product is marketable, transportable and eventually available for sale.
4. The product concrete mix was not specified anywhere in Chapter 28 of the Central Excise Tariff Act, 1985. It was classified under Chapter sub-heading 38.23. However, as both the concrete Mix and Ready Mix concrete were closely related products, confusion arose in respect of classification and levy of duty. The clarification was issued by the Central Board of Excise and Customs to sort out the confusion. The product concrete mix is classified under Chapter SH 3824.90 while the product Ready Mix concrete is classified under 3824.20 from the introduction of Union Budget for the year 1997-98. In the Finance Act, 1997, the classification of Ready Mix Concrete has been introduced in the Tariff Schedule and, therefore, no question of ultra vires arise according to the respondents.
5. The notification or the circular, which is relevant, provide an exemption in respect of concrete mix manufactured at the site of construction for use in construction work at such site and the duty leviable being “Nil” rate. The circular impugned reads thus:
4. The Board has examined the matter and is of the view that Ready Mix Concrete and Concrete Mix are two separate and distinguishable commodities. Ready Mix Concrete, even if it is manufactured at the site of construction, is chargeable to excise duty @ 13% under sub-heading No. 3824.20 of Central Excise Tariff Act, 1985. The exemption of concrete mix manufactured at the site of construction for use in construction work at such site available vide Serial No. 51 of Notification No. 4/97-C.E., dated 1-3-1997 is not applicable to Ready Mix Concrete manufactured at the site of construction.
The above portion of the circular is being challenged as being ultra vires.
6. At the hearing the learned Additional Central Government Standing Counsel specifically took a stand that Ready Mix Concrete is not leviable even if it is manufactured at the site of construction, but it is leviable only if such Ready Mix Concrete, which is manufactured in a place other than the place of construction for one’s own purpose or for its use somewhere else or by sale and by transportation of the same from Ready Mix plant to such site of third parties on consumers as the case may be.
7. Though there is some inconsistency in para-4 of the Notification issued by the Board, since the learned Standing Counsel for the respondents had clarified that Ready Mix Concrete is exempted only if it is manufactured at site by the promoter or builder for use as the case may be for its own construction at the site of construction.
8. The learned Additional Central Government Standing Counsel further represented that duty is leviable in respect of Ready Mix Concrete if it is manufactured in a Ready Mix unit installed for the purpose, supplied on transported through containers to sites of construction, which is different from the sites of mixing plant. In the light of the said stand taken by Mr. Veeraraghavan, Additional Central Government Standing Counsel, it is unnecessary to examine the contentions set out in the writ petition.
9. In the result, while recording the representation submitted by the learned Additional Central Government Standing Counsel, this writ petition is disposed of accordingly. Parties shall bear their respective costs.
10. As a result, the connected miscellaneous petitions are closed.