COMMISSIONER OF CENTRAL EXCISE. Vs. MYSORE CEMENTS LTD.

JUDGEMENT

(1.) This appeal is by the revenue challenging the order passed by the Tribunal holding that the construction industry is a service industry and the cement supplied to such an industry is entitled to concessional rate of duty of Rs. 400/- per MT in terms of Notification No. 4/2006 C.E. dated 1-3-2006 and accordingly, set aside the order passed by the adjudicating authority.

(2.) The Assessee is engaged in the manufacture and sale of packaged cement in unit packages (packed in HDEP/PP Bags) of 50 Kg and cement clinker falling under the schedule to Central Excise Tariff (Amendment) Act, 2005. The Assessee has been clearing the cement by paying the duty at the normal tariff rate at Rs. 600.00 per metric tonne. During the course of scrutiny of the self assessed monthly returns in Form ER-1 filed before the Superintendent of Central Excise, Tumkur II Range for the months of January 2008 to March 2008, it was noticed that the Assessee besides effecting the clearances at Rs. 600.00 per metric tonne, it has cleared certain quantities of cement by paying duty at Rs. 400.00/- per metric tonne, along with the applicable education cess at 2% and higher education cess at 1% in terms of the above said Notification. The said concessional rate of duty per tonne is available only if the cement cleared by the manufacturer is not in a packed condition. But, in the instant case, the Assessee had cleared the cement in packaged form since from January 2008 to March 2008. Therefore on the ground that the Assessee is not eligible to avail the benefit of concessional rate of duty to Rs. 400.00 per metric tonne as envisaged in the Notification, a show-cause notice was issued claiming additional duty, penalty, etc.

(3.) The learned Counsel for the Appellant assailing the impugned order contends that, the construction industry is not a service industry. Only when cement is sold in not packed condition, the Assessee would be entitled to the benefit of concessional rate of Rs. 400/- per metric tonne. When admittedly, the cement is sold in packaged condition of 50 Kgs bags, the Assessee is not entitled to the said benefit and therefore, he contends that the impugned order requires to be quashed. From the material on record, it is clear that, there is no dispute as regards the fact that clearances are made to the institutional consumers by the Assessee. Among these institutional consumers, one is construction industry. If the construction industry is held to be a service industry, then the Assessee is entitled to the benefit of the Notification. The construction activity has been considered as a service industry by the Finance Ministry. In the foreign trade policy of Government of India in the list of services as enumerated in the Appendix 10, construction and related engineering services in particular, general construction work for building, general construction work for civil engineering installation and assembly work building, completion and finishing work and Assessee is treated as a service industry.