TaxTMI 
TaxTMI 
2022 (3) TMI 400
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....nt of Central Excise Duty and also cleared some quantity for home consumption on payment of Central Excise Duty. On further verification, it was found that the appellant had installed RMC plant for manufacture of Ready Mix Concrete (RMC) within the construction site for manufacture of 'Ready Mix Concrete'. They were asked to produce the details of Ready Mix Concrete (RMC) manufactured and its clearance during the period April, 2014 to 2017. They submitted statements of captive consumption/dispatch details of RMC for the year 2015-16 and 2016-17 which showed clearance of Ready Mix Concrete manufactured and consumed captively as well as sold to other customers. On detail data provided by the assessee, it was found that they did not pay Central Excise Duty on RMC cleared for captive consumption during the period April, 2014 to September, 2015 and April, 2016 to June, 2017 accordingly, a Show Cause Notice dated 15.4.2019 was issued wherein, it was contended that the appellant have wrongly availed the benefit of Notification No.12/2012-CE dated 17.03.2012 and Notification No.12/2016-CE dated 01.03.2016 on the quantity of RMC manufactured and cleared by them for captive consumption. The ....
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....mption from payment of Excise Duty as held by Larger Bench of this Tribunal in the case of CHIEF ENGG. RANJIT SAGAR DAM Vs. CCE- 2006 (198) ELT 503 (Tri.-LB), the said order was thereafter confirmed by the Hon'ble Punjab & Haryana High Court vide their judgment reported in 2007 (217) ELT 345. Even the Hon'ble Supreme Court in the case of CCE Vs. SIMPLEX INFRASTRUCTURES LTD. reported in 2008 (225) 338 (SC). Shri Vishal Agrawal, learned counsel taking support of the above judgments submits that when Circular dated 23.05.1997, 06.01.1998 and 20.11.2001 had been eclipsed from their operation, assessee could not have been denied exemption on the basis of the circulars. 2.1 Without prejudice to his above submission, he further submits that it was only vide judgment dated 16.10.2015 of the Hon'ble Supreme Court in the case of LARSEN & TOUBRO LTD. Vs. CCE- 2015 (324) ELT 646 (SC) that the exemption under Notification No.4/97-CE, which is identically worded to Sr. No.144 of Notification No.12/2012-CE was held to be inapplicable to RMC. It is settled law that any judgment passed by the court holds the field till the time it is overruled or set aside or stayed. In other words, the overruling....
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....e. He submits that the finding of the adjudicating authority that assessee had willfully mis-declared the goods as 'Concrete Mix/Ready Mix Concrete' in the returns to invoke the extended period of limitation is concerned. He submits that the same is bereft of any merits. There has been no willful mis-declaration/misstatement on assessee's part. It is his submission that the description was based on the existing settled position in law (prior to the judgment of LARSEN AND TOUBRO) that RMC is nothing but a type of Concrete Mix. Further the usage of '/' also explains that assessee considered RMC as a type of Concrete Mix. Had the department any doubts, it was open to them while perusing the ER-1 Returns to seek clarification qua the same, while they didn't. Therefore, now it is impermissible on their part to invoke the extended period of limitation. He further submits that in the light of the order of Hon'ble Tribunal in the case of RANJIT SAGAR DAM (supra), it was held that RMC is eligible for exemption. This view also fortified by the Hon'ble Punjab and Haryana High Court thereafter. Further, the fact that this view was reversed by the Hon'ble Supreme Court in the case of LARSEN AND....
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....d in relation to manufacture of final product as accordingly benefit of exemption was admissible. 2.5 Without prejudice to his above submissions, he submits that the adjudicating authority rejected the assessee's contention that the demand of duty if any, could have been confirmed only at the rate of 2% in terms of the Sl. No. 46 of Notification No. 1/2011-CE is concerned which is devoid of any merits. He submits that the adjudicating authority has failed to appreciate that there is no estoppel in law if an assessee has not claimed benefit of the concessional rate of duty for a particular clearance, it does not estops or debars it from claiming the benefit of such concessional rate in respect of other clearance. 2.6 He submits that the finding of the adjudicating authority that the assessee has not shown any documentary evidence of reversal of proportionate credit is factually misconceived as ER-1 returns themselves, clearly evidence that the assessee had reversed the proportional credit under Rule 6(3) of Cenvat Credit Rules, 2004 on which there is no dispute. In view thereof, it is clear that the condition stipulated under the Notification No. 01/2011-CE for Serial No. 46 stand....
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.... craves leave to refer to and relying upon the submissions urged in the preceding paragraphs. Assessee also craves leave to refer to and rely upon the present synopsis along with the submissions urged in appeal memorandum of appeal and cross-objections, he prays for allowing the appeal of the assessee and dismissing the revenue's appeal. 03. Per contra, Shri T.G.Rathod, Learned Additional Commissioner (AR) appearing on behalf of the revenue in respect of Revenue's appeal submits that the adjudicating authority has erred in holding that by virtue of Entry No.144 of Notification No.12/2016-CE dated 01.3.2016, the assessee is not liable to pay Central Excise Duty on the 'Ready Mix Concrete' cleared for use in construction work in the site during the period from April, 2016 to June, 2017. He referred to the exemption Entry No.144 and explanation given in the said entry to submit that the exemption under this entry is available subject to the condition that the 'Ready Mix Concrete' manufactured at such site is solely used in the said construction work only. The assessee during the period April, 2016 to June, 2017 manufactured and cleared 'Ready Mix Concrete' for captive consumption wit....
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....ption under Notification No.12/2012-CE dated 17.3.2012. For availing this benefit they misdeclared goods in documents as "Concrete Mix/Ready Mix Concrete" whereas, only 'Ready Mix Concrete' were manufactured by them and used in construction in their premises, which was not eligible for exemption under the aforesaid notification. He submits that for the period from October, 2015 to February, 2016 the assessee has made payment of Central Excise Duty on entire quantity of RMC manufactured and cleared by them whether for home consumption or used for construction work in their premises. He submits that the case laws relied upon by the assessee are in respect of earlier period i.e. Period prior to the period involved in the present matter and in respect of another notification which had been rescinded and was not applicable in the present case. He submits that in the present matter, the applicable notification is 12/2012-CE dated 17.03.2012 in which vide entry No.144 exemption has been granted only to Concrete Mix which is manufactured at the site of construction. There is no mention of 'Ready Mix Concrete' in the said notification till 01.03.2016 when the entry No.144 has been amended v....
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....factory premises for civil construction work has prescribed that capital goods as defined under Cenvat Credit Rules, 2002/2004 will be eligible for benefit of this notification. 3.6 However, as discussed hereinabove, the goods manufactured by the Noticee namely RMC and civil construction work which has been constructed by using RMC manufactured by them, are not capital goods and hence the benefit of Notification No.67/95-CE dated 16.03.1995 is not available to them. As regard the benefit of concessional rate of duty prescribed under Notification No.1/2011-CE dated 01.03.2011 (as amended) he submits that the assessee had cleared RMC on payment of Central Excise Duty for home consumption during the entire period covered in this show cause notice. They have paid the Central Excise Duty for such clearance at prescribed tariff rate and not at the concessional rate of duty at the rate of 2% hence, the benefit of concessional rate of duty for the quantity of RMC used in construction at site cannot be extended to them. Moreover, the contention of the assessee that they have reversed the proportionate amount of Cenvat Credit is not supported by any documentary evidence. Further, to avail s....
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....here were contrary judgments on the issue however, finally the hon'ble Supreme Court in the case of LARSEN & TOUBRO LTD. Vs. CCE- 2015 (324) ELT 646 (SC) held that the exemption under Notification No.4/97-CE which is identically worded to Sr.No.144 of Notification No.12/2012-CE dated 17.03.2012 is inapplicable to Ready Mix Concrete. The relevant judgment is reproduced below: 19. We are also inclined to agree with the stand taken by the Revenue that it is the process of mixing the concrete that differentiates between CM and RMC. In the instant case, as it is found, the assessee installed two batching plants and one stone crusher at site in their cement plant to produce RMC. The batching plants were of fully automatic version. Concrete mix obtained from these batching plants was delivered into a transit mixer mounted on a self propelled chassis for delivery at the site of construction is in a plastic condition requiring no further treatment before being placed in the position in which it is to set and harden. The prepared chassis which was mounted was to ensure that when the concrete mix is taken to the actual place of construction, it keeps rotating. It is also significant to ment....
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..... After referring to some text as well, the adjudicating authority brought out the differences between Ready Mix Concrete and CM which is conventionally produced. The position which was summed up showing that the two products are different reads as under : "From the literature quoted above it is clear that Ready Mix Concrete is an expression now well understood in the market and used to refer to a commodity bought and sold with clearly distinguishable features and characteristics as regards the plant and machinery required to be set-up for its manufacture and the manufacturing processes involved, as well as its own properties and the manner of delivery. RMC refers to a concrete specially made with precision and of a high standard and as per the particular needs of a customer and delivered to the customer at his site. Apparently due to the large demand resulting from rapid urbanization and pressure of completing projects on time, consumption of RMC has steadily grown replacing the conventional/manual concreting works. Today leading cement companies have entered the field by setting-up RMC plants in which L&T ECC is one. RMC is slowly replacing site or hand mixed concrete because ....
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.... Circulars have lost its sanctity being contrary to the judgments of Courts. Therefore, subsequent to the aforesaid judgment, even the department cannot rely upon this Circular. It is settled law by the Hon'ble Supreme Court in the case of CCE Vs. RATAN MELTING AND WIRE INDUSTRIES (supra) which mainly dealt with the issue related to effect of circular viz-a-viz. the decisions of a Court held as under; "6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court of the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view express in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary ....
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....uch as issuance of show cause notice could have been taken. From this explicit information given in the ER-1 Returns and Invoice, it cannot be said that there is any suppression of fact on the part of assessee. 4.3 It is also observed that even the entire case was made out on the basis of the same ER-1 Returns therefore, all the information required for issuance of Show Cause Notice was available with the department. In this fact, it cannot be said that the assessee have suppressed the fact with intent to evade payment of duty. The adjudicating authority has rejected the contention of the asessee on demand being time barred on the ground that the assessee have mis-declared the product as Concrete Mix/Ready Mix Concrete. We are not convinced with this finding of the learned Adjudicating Authority for the simple reason that even though the assesee have mentioned as Concrete Mix but after '/' Ready Mix Concrete is also mentioned. At the most, it can be said that the assessee have declared both the product i.e. Concrete Mix/Ready Mix Concrete but in the exemption Notification column they have clearly claimed the notification No.12/2012-CE dated 17.03.2012 (Sl.No.144). With this inform....
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....ful misstatement. The latter implies making of an incorrect statement with the knowledge that the statement was not correct. 11. Factual position goes to show the Revenue relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out application of Section 11A of the Act. 12. As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are....
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....CE, Chandigarh. (b) 1994 (73) E.L.T. 91 (Tri.) - Jaypee Rewa Cement v. CCE, Raipur. (c) 1997 (23) RLT 260 (CEGAT) - Bhawanthadi Minerals v. CCE, Raipur. (d) 1998 (104) E.L.T. 66 (T) = 1998 (27) R.L.T. 474 (Tri.) - New Vikram Cement v. CCE, Indore (e) 1990 (104) E.L.T. 505 - Duriappa Lime Products v. CCE, Madras 8. In this case, there was a divergent view of the various High Courts whether crushing of bigger stones or boulders into smaller pieces amounts to manufacture. In view of the divergent views, of the various High Courts, there was a bona fide doubt as to whether or not such an activity amounted to manufacture. This being the position, it cannot be said that merely because the Appellants did not take out a licence and did not pay the duty the provisions of Section 11A got attracted. There is no evidence or proof that the licence was not taken out and/or duty not paid on account of any fraud, collusion, wilful mis-statement or suppression of fact. We, therefore, set aside the demand under the show cause notice dated 3rd May, 1993. The ratio of the above judgments is clearly applicable in the present case being the facts are similar. The Authorized Representative of ....