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2019 (3) TMI 775 - AT - Central ExciseValidity of SCN - SCN issued by invoking the extended period of limitation - change of opinion - Held that - The SCN in question, invoking the extended period of limitation has been issued by way of change of opinion, there being no condition precedent available for invocation of extended period of limitation - The SCN is not maintainable - appeal allowed - decided in favor of appellant.
Issues Involved:
1. Validity of invoking the extended period of limitation in the issuance of the show cause notice. 2. Classification and exemption eligibility of Ready Mix Concrete (RMC) under relevant notifications. 3. Applicability of Supreme Court rulings on the classification of RMC and Concrete Mix (CM). Detailed Analysis: 1. Validity of Invoking the Extended Period of Limitation: The primary issue in this appeal is whether the show cause notice was validly issued by invoking the extended period of limitation. The appellants argued that the grounds for invoking the extended period of limitation were not substantiated by facts or evidence in the Show Cause Notice or the impugned order. They contended that the demand related to the period from 01.03.2012 to 31.03.2012, and the show cause notice was issued on 09.03.2017, which is beyond the normal limitation period. The Tribunal concluded that the show cause notice was issued due to a change of opinion by the Revenue and not due to any collusion, suppression of facts, or malafide intent by the appellant. Consequently, the Tribunal held that the extended period of limitation was not applicable, rendering the show cause notice invalid. 2. Classification and Exemption Eligibility of Ready Mix Concrete (RMC): The appellants, M/s. Nagarjuna Construction Co. Ltd., were engaged in the manufacture of Ready Mix Concrete (RMC). They contested the demand for excise duty on the grounds that RMC was exempt from duty under Notification No. 4/1997-CE and Notification No. 4/2006-CE, which exempted 'Concrete Mix' from excise duty. The appellants argued that RMC and Concrete Mix (CM) were the same and thus eligible for the exemption. However, the Revenue's position, supported by the Supreme Court's ruling in the case of Larsen and Toubro vs. CCE, Hyderabad, was that RMC and CM are distinct products, and the exemption applied only to CM and not to RMC. The Tribunal noted that the Revenue's earlier view, as evidenced by a show cause notice dated 07.02.2011, was that RMC was exempt under the said notifications. This earlier view was also supported by the Punjab and Haryana High Court in the case of Chief Engineer, Ranjit Sagar Dam, which held that RMC and CM are the same and thus exempt from excise duty. 3. Applicability of Supreme Court Rulings on Classification of RMC and CM: The Tribunal considered the Supreme Court's ruling in the case of Larsen and Toubro vs. CCE, Hyderabad, which differentiated between RMC and CM based on the manufacturing process and the characteristics of the products. The Supreme Court held that RMC is not the same as CM and thus not eligible for the exemption under Notification No. 4/1997-CE. The Tribunal acknowledged this ruling but noted that the show cause notice in the present case was issued after the Supreme Court's decision, indicating a change of opinion by the Revenue rather than any new evidence or facts. The Tribunal emphasized that the Supreme Court's ruling came after the period in dispute (March 2012) and that the Revenue's earlier position was that RMC was exempt from duty. Conclusion: The Tribunal concluded that the show cause notice invoking the extended period of limitation was not maintainable as it was issued due to a change of opinion by the Revenue without any new evidence or facts. The Tribunal allowed the appeal, set aside the impugned order, and granted consequential relief to the appellants in accordance with the law. The Tribunal's decision was based on the invalidity of the show cause notice and the absence of any conditions justifying the invocation of the extended period of limitation.
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