2024 (7) TMI 863

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....n the grounds of limitation, holding that the entire demand (covering period from April 2014 to September 2015 and April 2016 to June 2017) is under extended period and therefore time barred? (ii) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal was right and justified to hold that the demand under the period April 2017 to June 2017 is also suffering from the vices of limitation and therefore time barred? (iii) Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal was right and justified in dismissing the appeal of the Revenue by way of ignoring Explanation added in Entry No. 144 of amending Notification No. 12/2012-CE dtd. 17.03.2012 vide Notification No. 12/2016-CE dated 01.03.2016? (iv) Whether the Hon'ble CESTAT is legally correct and proper while holding that the Respondent is eligible for exemption under Entry No. 144 of Notification No. 12/2012-CE dated 17.03.2012 as amended by Notification No. 12/2016-CE dated 01.03.2016 for the Ready Mix Concrete manufactured at the site and cleared for using construction at such site during the period from April, 2016 to June, 2017? (v) Whether the word....

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....nufactured and cleared captively was different from concrete mix and hence, the exemption was not available and accordingly, it was proposed to demand the excise duty on RMC along with interest. 4. The Adjudicating Authority by order dated 23.10.2019 raised the demand of Rs. 41,74,42,183/- under Section 11A of the Act and the demand of Rs. 8,31,68,920/- was dropped by extending the benefit of exemption Notification No. 12/2016-CE dated 1.3.2016. 5. Being aggrieved by the order in original, Appeal No. E/10173/2020-DB was filed before the Tribunal. The appellant also filed an Appeal No. E/10155/2020 against the dropping of the demand. 6. The Tribunal by the order dated 7.3.2022 allowed the appeal of the respondent - assessee and dismissed the Appeal of the appellant - revenue, holding that the show cause notice was time barred as well as on merits to the effect that as per the Notification No. 12/2016-CE dated 1.3.2016, the respondent - assessee was entitled to claim exemption of the goods which are solely used at the site of the construction as per Entry No. 144, as the respondent - assessee has already paid the excise duty on the quantity of RMC cleared outside the factory. The ....

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....o. 527 of 2022, following the decision of the Hon'ble Supreme Court in the case of Navin Chemicals MFG & Trading Co. Ltd. (supra), has held that the Appeal would be maintainable before the Hon'ble Supreme Court in the facts of the said case. 8. On the other hand, learned advocate Mr. Utkarsh Sharma for the appellant - revenue vehemently opposed the preliminary objection and submitted that the appellant - revenue has denied the exemption to the respondent - assessee on the RMC used at the construction site relying upon the Explanation to Entry No. 144 of the Notification No. 12/2016-CE dated 1.3.2016 as the said Explanation clearly mentions that RMC is required to be used solely on the site of construction. It was submitted that as the petitioner has committed breach of entry, the Appeal would be maintainable before this Court as there is no dispute with regard to applicability of the rate or any other aspect with regard to the liability of the respondent - assessee to pay the central excise duty. In support of his submissions, reliance was placed on the decisions of the Hon'ble Supreme Court in the case of Asean Cableship Pte. Ltd. v. Commissioner of Customs, reported in 2022 (380....

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....h of conditions prescribed in the said Notification is concerned, it would be germane to refer to the said Notification which is reproduced as under : "Notification No. 12/2016-CE dated 1.3.2016. G.S.R. 229 (E). -In exercise of the powers conferred by sub-section (1) of section 5A of the Central Excise Act, 1944 (1 of 1944), the Central Government, being satisfied that it is necessary in the public interest so to do, hereby makes the following further amendments in the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 12/2012-Central Excise, dated the 17th March, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 163(E), dated the 17th March, 2012, namely: In the said notification,- (A) in the opening paragraph, the first proviso shall be omitted; (B) in the Table,- (i) against serial number 35, for the entry in column (4), the entry "19%" shall be substituted; (ii) against serial number 68, in column (3), after the words "heavy alkylate", wherever they occur, the words "or Nparaffin arising in the course of manufacture of linear alkyl benzene or heavy alkyl....

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....re manufactured goods i.e. Ready Mix Concrete (RMC) should be used within the premises of manufacturer for construction work and no any part of the manufactured goods should be cleared outside the factory. In absence of such condition, the department cannot impose artificially such condition to deny the exemption to the assessee. We are, therefore, of the clear view that the adjudicating authority had rightly extended the benefit of exemption notification in respect of Ready Mix Concrete (RMC) used by the assessee in their manufacturing premises for construction work hence, the demand for the period April, 2016 to June, 2017 was rightly dropped by the adjudicating authority on the ground of its merit. Since, we have decided the matter in both the appeals on the ground of limitation and in the Department's appeal also on merit, we are not inclined to deal with other issues such as claim of exemption notification No. 67/95-CE and Notification No. 2/2011-CE dated 01.03.2011 (Sl. No. 46)." 13. On perusal of the above finding of the Tribunal in relation to the Notification No. 12/2016-CE dated 1.3.2016, it only considers the applicability of such Notification; as to whether the exempt....