9911796707
TMI Blog2007 (8) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant M/s Nathpa Jhakri Power Corporation (in short 'NJPC') is a Joint venture between the Government of India and Govt. of Himachal Pradesh, set up for the purpose of construction of a power-project between the towns of Nathpa-Jhakri in Himachal Pradesh known an Nathpa Jhakri Power Corporation funded by the World Bank. The civil work relating to the project was allotted to three construction companies viz. M/s Continental Foundation Joint Venture (in short 'CFJV'), M/s Nathpa Jhakri Joint Venture (in short 'NJJV') and M/s Jai Prakash Hyundai Consortium, (in short 'JPHC'). The agreement was entered into by M/s NJPC and the construction companies to provide inter alia 'mix concrete' for execution of various items of work under the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of approved mix design and the specified quantity is manufactured in the batching plant strictly in accordance with IS: 456-1978 as stipulated in the contract with M/s NJPC. The concrete so produced is transported by transit mixers upto the location of placement and is placed at the specified location by concrete pumps or placers before the setting time of concrete, which varies depending upon the type of cement used. Noticee companies are manufacturing RMC but with some motive, they are naming it as mixed concrete to evade the central excise duty. There is a difference between the process and method of manufacture of RMC provided in the Bureau of Indian Standards (in short 'BIS') literature under IS: 4926/1976 and the Board's le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C have apparently abetted the contravention of non payment of Duty, they are therefore, liable for penal action the said abetment." 5. In appeal, apart from the other challenges the plea relating to non-applicability of the extended period of limitation was also urged. The Tribunal did not accept the contention with the following observations: "16. Another argument is about the time bar of demands. It is contended that, in view of the Board Circular dated 6.1.1998, since they were making the concrete at site and as per the standards prescribed in IS: 456-1978, they were under a bona fide belief that what they were manufacturing was mix concrete and not the RMC. The contention of bona fide belief is also advanced on their eligibility to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause in the contract would bind the Power Corporation to reimburse the appellants even for the duty liability fastened on to the appellants on the ground of suppression and misrepresentation etc. and not on account of any change in legislation, regulation or by laws. The plea of bona fide belief is, therefore, rejected. The appellants are also claiming the benefit of modvat credit on the input material but this plea is also not raised before the original authority. However, in the interest of justice, they could be given an opportunity to establish their case before the original authority for eligibility to the modvat credit in respect of the duty paid on the input material used in the manufacture of RMC with the documentary proof." 6. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information is not suppression of facts unless it was deliberate to stop the payment of duty. Suppression means failure to disclose full information with the intent to evade payment of duty. When the facts are known to both the parties, omission by one party to do what he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11-A the burden is cast upon it to prove suppression of fact. An incorrect statement cannot be equated with a willful 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 rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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