Arijit Pasayat, J. - (1.) These ap peals involve identical question of law and are, therefore, disposed of by this common judgment. The controversy relates to the fi nancial year 1997-98. Post 1997-98 the tar iff entry provides that the rate is nil. The basic facts are noted in the appeal filed by Continental Foundation Joint Venture-the appellant in Civil Appeal No.3139 of 2002.
(2.) The appellant M/s. Nathpa Jhakri Power Corporation (in short 'NJPC') is a Joint venture between the Government of India and Govt. of Himachal Pradesh, set up for the purpose of construction of a power-project between the towns of Nathpa-Jhakri in Himachal Pradesh known as Nathpa Jhakri Power Corporation funded by the World Bank. The civil work relating to the project was allotted to three construction companies viz. M/s. Continental Founda tion Joint Venture (in short 'CFJV'), M/s. Nathpa Jhakri Joint Venture (in short 'NJJV') and M/s. Jai Prakash Hyundai Con sortium, (in short 'JPHC'). The agreement was entered into by M/s. NJPC and the construction companies to provide inter alia 'mix concrete' for execution of various items of work under the contract.
(3.) The Commissioner of Central Excise, Chandigarh issued a show cause notice dated 20.1.1999 to all the above parties al leging that the construction companies em ployed by M/s. NJPC were manufacturing Ready Mix Concrete (in short 'RMC') on which no central excise duty is being paid. Since the said RMC falls under Chapter Heading No.3824.20 of the Schedule to the Central Excise Tariff Act, 1985 (in short 'Tar iff Act') and is subject to Central Excise duty under Central Excise Act, 1944 (in short the 'Act'), duty is payable. All the three parties are adopting the same method of manufac ture of RMC for which the rock is blasted from the designated quarry of M/s. NJPC. It is transported to the crusher and crushed to the specified sizes and specific quantity at the project site. Some aggregate, cement and sand are also produced from the crush ing plant set up at the site. Some natural sand is also used. The aggregate and sand are transported and stored in bins adjacent to the automatic batching plant. The cement purchased from the market is stored in the cement silons at the site. The batching plant is an automatic plant which regulates and delivers the specified sizes and quantities of aggregate, sand and cement into the mix ing drums through the built- in-conveyor. The admixture for water reduction or air en training is incorporated in the concrete as per the approved mix design given by the NJPC. The whole process is fully automatic and is electronically controlled. The concrete of approved mix design and the specified quantity is manufactured in the batching plant strictly in accordance with IS: 456-1978 as stipulated in the contract with M/s. NJPC. The concrete so produced is trans ported by transit mixers upto the location of placement and is placed at the specified location by concrete pumps or placers be fore the setting time of concrete, which var ies depending upon the type of cement used. Noticee companies are manufacturing RMC but with some motive, they are naming it as mixed concrete to evade the central excise duty. There is a difference between the pro cess and method of manufacture of RMC provided in the Bureau of Indian Standards (in short 'BIS') literature under IS: 4926/ 1976 and the Board's letter No.368/1/98-CX dated 6.1.1998. In this Circular of the Board, the process of manufacture of RMC is spelt out and it is clarified that RMC is a dutiable product. The matter was referred to the BIS who vide their letter dated 23.10.1998 reported that the query raised by the department vide their letter dated 9.7.1998 was considered by the Concrete Sub Committee and its views are as follows : "It is agreed that in so far as the process of manufacturing the concrete is involved, the process described in the letter of Cen tral Excise is similar to the process given in IS:4926 specification for "Ready Mix Con crete'".;