2017 (11) TMI 474 - AT - Central Excise

Tribunal upholds duty demands for manufacturing Ready-Mix-Concrete without paying Central Excise Duty

M/s DLF Projects Ltd and others Versus CCE, Delhi

The Tribunal dismissed all appeals, upholding duty demands and penalties imposed on the appellant for manufacturing Ready-Mix-Concrete (RMC) without ... Classification of goods - Ready-Mix-Concrete - N/N. 04/2006-CE dated 01.03.2006 (S.No. 74) - case of appellant is that since such goods have been used in construction work at such site, the benefit of notification will be entitled to them - Held that: - the issue of entitlement of “Ready-Mix-Concrete” manufactured at site of construction to the benefit of N/N. 4/2006 is no longer res Integra and stands decided against the assesee by the Apex Court in the case of M/s Larsen & Toubro Ltd. & Another, ECC Construction Group Versus Commissioner of Central Excise, Hyderabad [2015 (10) TMI 612 - SUPREME COURT], where it was held that “Ready-Mix-Concrete” is different from Concrete mix and hence “Ready-Mix-Concrete” will not be entitled to benefit of N/N. 4/2006. Extended period of limitation - Held that: - the party has willfully suppressed the material facts of manufacturing and clearing Ready Mix concrete without payment of appropriate duty from the knowledge of the Department and evidently mis-declared and mis-stated the facts with the intention to evade the payment of duty by irregularly availing the benefit of Notification - extended period rightly invoked. Appeal dismissed - decided against appellant. Issues Involved:1. Classification and dutiability of 'Ready-Mix-Concrete' (RMC).2. Eligibility for exemption under Notification No. 4/2006-CE dated 01/03/2006.3. Applicability of extended period of limitation for demand.4. Justification for penalties imposed.Detailed Analysis:1. Classification and Dutiability of 'Ready-Mix-Concrete' (RMC):The appellant, engaged in the manufacture of RMC, did not register for manufacturing RMC at various sites and did not pay Central Excise Duty. The investigation by the Directorate General of Central Excise Intelligence revealed that the appellant was evading duty by incorrectly availing the benefit of Notification No. 4/2006-CE, which exempts 'concrete mix' but not RMC. The adjudicating authority, considering the manufacturing process and the Supreme Court's observations in the case of Larsen and Toubro Ltd. v. CCE, concluded that RMC is distinct from concrete mix and is not entitled to the exemption.2. Eligibility for Exemption under Notification No. 4/2006-CE dated 01/03/2006:The appellant argued that RMC manufactured at the site of construction should qualify for exemption under the said notification. They relied on judicial pronouncements, including CCE v. Chief Engineer, Ranjit Sagar Dam, and Larsen and Toubro Limited v. CCE. However, the Supreme Court in Larsen and Toubro Ltd. v. CCE clarified that RMC is different from concrete mix and does not qualify for the exemption. The Tribunal upheld this view, stating that the issue of entitlement to the exemption for RMC manufactured at the construction site is settled against the assessee by the Apex Court.3. Applicability of Extended Period of Limitation for Demand:The appellant contended that the demand should be restricted to the normal time limit, arguing that the classification and duty liability of RMC were subjects of numerous litigations, leading to a bona fide belief that no duty was payable. However, the adjudicating authority found that the appellant willfully suppressed facts by misdeclaring RMC as concrete mix to evade duty. Citing cases like Kirloskar Brothers Ltd. vs. Union of India and Union of India Vs. Rajasthan Spinning and Weaving Mills, the authority justified invoking the extended period of limitation. The Tribunal agreed with this reasoning, rejecting the appellant's plea.4. Justification for Penalties Imposed:Penalties were imposed on the appellant for evading duty by misdeclaring RMC as concrete mix. The adjudicating authority noted that the appellant's actions were deliberate, aimed at misleading the department. The penalties were justified under Section 11AC of the Central Excise Act, 1944, read with Rule 25 of the Central Excise Rules, 2002. The Tribunal found no reason to interfere with the penalties, upholding the adjudicating authority's decision.Conclusion:The Tribunal dismissed all appeals, upholding the duty demands and penalties imposed on the appellant. The judgment emphasized that RMC is distinct from concrete mix and does not qualify for exemption under Notification No. 4/2006-CE. The extended period of limitation was rightly invoked due to the appellant's willful suppression of facts. The penalties were justified based on the appellant's deliberate misdeclaration and intent to evade duty.