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2024 (12) TMI 1236
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.... - 2015 (324) ELT 646 (SC)? 1.1 Both these appeals are arising out of common impugned order whereby the demand for the extended period i.e. from March 2011 to February 2015 was set aside by the adjudicating authority on the ground of limitation against which the revenue has filed the appeal bearing No. E/12216/2018 and demand for normal period for the period March 2015 to February 2016 was confirmed against which the assessee is in appeal in appeal No. E/12438/2018. 2. Shri Ishan Bhatt, learned counsel appearing on behalf of the appellant, at the outset, submits that the dispute involved is eligibility of Exemption Notification to the concrete mix manufactured at site of construction. He fairly concedes that as regard, the assesse's appeal demand is within the normal period and as per the Hon'ble Supreme Court Judgment in the case of L&T Ltd. vs CCE Hyderabad 2015 (324) ELT 646 (SC), the concrete mix is not eligible for exemption, therefore, he is not pressing the appeal filed by the assessee. As regard, the Revenue's appeal he submits that learned Commissioner (Appeals) after considering all the facts and various judgments held that the demand for the extended period is also....
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....he same is limited to ready mix concrete or concrete mix also. This issue was carried in litigation in various judgments and there were conflicting issues on this issue. Later on the Hon'ble Apex Court in the case of L&T Limited (supra) finally decided the matter that the exemption is available to only ready mix concrete and not the concrete mix. It is also observed that subsequently the Government has brought the exemption also for concrete mix, vide Notification No. 12/2012-CE dated 17.03.2012 under Serial No. 144. This shows that there was an ambiguity about the exemption on concrete mix vis a vis ready mix concrete. Considering all these fact and applying the judgments, learned Commissioner (Appeals) has held the demand being time barred. Therefore, we do not find any infirmity in setting aside the demand on the ground of time bar by Commissioner (Appeals) in the impugned order. On the identical issue Tribunal in the case of Reliance Industries Limited also held the demand as time bar. The relevant judgment is reproduced below: "04. We have carefully considered the submissions made by both the sides and perused the records. From both the appeals, the issue arises for o....
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....hemically analysed water and admixtures, namely, retarders and plasticizers. As the L&T was constructing cement plant of a very high quality, it needed concrete also of a superior quality and to produce that aforesaid sophisticated and modernised process was adopted. The adjudicating authority in its order explained the peculiar feature of RMC and the following extracts from the said discussion needs to be reproduced : "32. Central Excise Tariff does not define Ready Mix Concrete. Therefore, as per the established case-laws on the subject it is necessary to look for the meaning of this expression as understood in the market viz., as understood by the people who buy and sell this commodity. In this connection it would be relevant to refer to the following excerpts from an article - what is ready mix concrete, appearing in internet website of National Ready Mix Concrete Association, USA :- (i) Concrete, in its freshly mixed state, is a plastic workable mixture that can be cast into virtually any desired shape. It starts to stiffen shortly after mixing, but remains plastic and workable for several hours. This is enough time for it to be placed and finished. Concrete ....
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.... speed and convenience. Furthermore, absence of the need to deal with multiple agencies for procuring and storing cement, sand, blue metal and water as well as the absence of the need to handle unorganized labour force are factors influencing customers to go in for RMC in preference to CM." 21. In this backdrop, the only question is as to whether RMC manufactured and used at site would be covered by notification. Answer has to be in the negative inasmuch as Notification No. 4, dated March 1, 1997 exempts only 'Concrete Mix' and not 'Ready Made Mixed Concrete' and we have already held that RMC is not the same as CM. In view of the above judgment, the Apex Court held that RMC is not the same as Concrete Mix and exemption is granted to Concrete Mix only and not to the Ready Mix Concrete. In view of the above judgment, it is clear that the assessee's product i.e. Ready Mix Concrete (RMC) is not eligible for exemption under Notification No.12/2012-CE dated 17.03.2012 (Sl.No.144) which is pari materia to the exemption entry provided in Notification No.4/97-CE involved in the case of LARSEN & TOUBRO (supra). 4.2 As regard the ground raised by....
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....ar which is contrary to the statutory provisions has really no existence in law." From the aforesaid judgment, when such circulars dated 23.05.1997, 06.01.1998 and 20.11.2001 has been eclipsed from their operation, in view of the above settled position in law, it cannot be said that the assessee had any malafide intention with intent to evade payment of duty. Moreover, the issue involved is the interpretation of exemption Entry in respect of which even there are contrary views of the Hon'ble Supreme Court judgment of SIMPLEX INSFRASTRUCTURES LTD.(supra) and LARSEN & TOUBRO (supra) therefore, in a case where there is a possibility of different interpretation which is not in dispute in the present case, it cannot be alleged that the assessee had any malafide intention with intent to evade payment of duty. As regard the factual matrix on the issue of limitation, we find that the assessee have been filing their ER-1 Returns regularly. Relevant page of ER-1 Returns are scanned below:- From the above ER-1 Returns, it is observed that the assessee have declared the description of the product in question as 'Concrete Mix/Ready Mix Concrete' and they have also ....
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....imed the notification No.12/2012-CE dated 17.03.2012 (Sl.No.144). With this information, if at all the department is of the view that the assessee is not entitled for exemption in respect of Ready Mix Concrete (RMC) department could have called the specific quantity of Ready Mix Concrete and could have issued a show cause notice well within the normal period. The department has failed to do so therefore, for this reason on the part of the department, suppression of fact or mis-declaration cannot be alleged on the part of the assessee. It is also a fact on record that the assessee's records were audited from time to time and no issue of RMC and exemption threron was raised despite all the information available on records. 4.4 In our view, it is the vital part for auditors to verify that whether the claim of the assessee in respect of exemption notification no.12/2012-CE dated 17.03.2012 in their ER-1 returns. On this basis, it is clear that the assessee have not mis-declared any fact from the department. The assessee in their argument relied upon the judgment of the Hon'ble Supreme Court on the issue of limitation, the same is reproduced below:- (i) CONTINE....
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....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 clearly qualified by the word 'wilful', preceding the words "misstatement or suppression of facts" which means with intent to evade duty. The next set of words 'contravention of any of the provisions of this Act or Rules' are again qualified by the immediately following words 'with intent to evade payment of duty.' Therefore, there cannot be suppression or mis-statement of fact, which is not wilful and yet constitute a permissible ground for the purpose of the proviso to Section 11A. Misstatement of fact must be wilful. (ii) JAIPRAKASH INDUSTRIES- 2002 (146) 481 (SC) 6. We will first take up the second question. The law on this point is well-settled. In the case of Padmini Products v. Collector of Central Excise reported in 1989 (43) E.L.T. 195 (S.C.), this Court has held that wherever there is the scope for believing that the goods are not excisable to duty and, therefore, no licence is required to be taken out, then the extended period of limitation for demand under Section 11A is inapplicable....
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.... 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 the Revenue heavily relied upon various judgments on the limitation. We are of the view that as regard the issue of limitation, the case is based on facts of each case. As per the facts of the present case, as discussed above it is clear that there is absolutely no suppression of fact on the part of the assessee with intent to evade payment of duty therefore, the judgments relied upon by the Revenue are not applicable in the facts of the present case. Accordingly, the entire demand is under extended period i.e. from April, 2014 to September, 2015 and April, 2016 to June, 2017 whereas, the Show Cause Notice was issued on 15.04.2019 therefore, the entire demand is time barred. 4.5 Without prejudice to our above findings on time bar, we find that the revenue has also filed appeal against the dropping of demand of Rs.8,31,68,920/- i.e. for the period April, 2016 to June, 2017 however, as per the above finding even demand for this period is ....
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....art 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). 05. As per our above discussions and findings, the impugned order stands modified. As a result assessee's appeal No E/10173/2020 is allowed with consequential relief and Revenue's appeal No E/10155/2020 is dismissed. CO also stands disposed of." It can be seen that identical facts are involved in the above judgment ....
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....tion Avalled Sl. No. in Tariff Ad Valorem Specific Notification Duty Pay- able (Rs.) Prov. Assessment No. 0.0 0 ° canned with Page 1 of 38 Document 2 NON TARIFF NOTIFICATION USED FOR CLEARANCE SI No. 1 2 N.T.Notification Avalled 3 DUTY PAYABLE FOR CLEARANCE N.T.Notification Sl. No. 44. Duty Head Tariff Noufication Availed CENVAT Sl. No. In Tarif Ad Valorem Specific Notification Duty Pay able (Rs.) Prov. Assessment No. 6.0 ° 88190 EDU CESS 2.0 ° 1786 SEC EDU CE SS 1.0 ° 871 14 DETAILS OF CLEARANCE Goods CETSH No. Description of Unit of Quant- Opening Bal- ity ance Quantity Manufac Cleared Quantity Closing Bal Assessable Type Of Clear- ance Value(Rs.) ance tured 38245010 CONCRETE M3 ° 0 2547000 ° 10796545 Home Clear- ance MIX/READY MIX CON- CRETE NON TARIFF NOTIFICATION USED FOR CLEARANCE SI No. N.T.Notification Availed 1 2 3 DUTY PAYABLE FOR CLEARANCE N.T.Notification Sl. No. Duty Head Tariff Notification Availed CENVAT 12/2012 C.E. Sl.....