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TMI Blog2023 (6) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... HELD THAT:- From the dates and events of the litigation, it is established that the issue as to whether RMC is also eligible for the Exemption Notification No.4/97-CE, other notifications and whether RMC and concrete mix are one and the same was under confusion and was under litigation before various forums. Also the department has not been able to establish with cogent evidence that there is any positive act of suppression on the part of the appellant with intent to evade payment of duty. The details for demand of duty has been derived from the accounts and documents furnished by the appellant. In the case of M/S CONTINENTAL FOUNDATION JOINT VENTURE SHOLDING, NATHPA HP VERSUS COMMISSIONER OF CENTRAL EXCISE, CHANDIGARH-I [ 2007 (8) TMI 11 - SUPREME COURT] the Hon ble Apex Court allowed the plea of the assessee that the SCN is time barred as there were no grounds to invoke extended period and also because there were doubts as to whether RMC is a dutiable product. Thus, SCNs issued invoking the extended period in these appeals are time-barred and therefore cannot sustain. The impugned orders are set aside on the ground of limitation. Appellants succeed on the ground of limitation. X X X X Extracts X X X X X X X X Extracts X X X X ..... that RMC is not same as Concrete Mix (CM) and that the Notification No.4/1997 dated 01.03.1997 exempts only 'Concrete Mix' and not 'Ready Made Mixed Concrete'. 6. The Ld. counsel did not put forward any argument on the merits of the case and has confined the arguments on the ground of limitation. 7. It is submitted that the issue was contentious and litigated before various forums. There was much doubt as to whether RMC can be considered as 'Concrete Mix' and the exemption as per Notification No.4/1997-CE dated 01.03.1997 would be available. The issue being interpretational in nature, the demand raised invoking the extended period cannot sustain. To support the argument that the issue was contentious before various forums, Ld. Counsel has placed a list of dates and events with regard to the litigation on the issue tabulated as under : LIST OF DATES AND EVENTS Sl. No. Date Events 1 23.05.1997 The Central Board of Excise and Customs by paragraph 4 in its Circular No. 315/31/97-CX dated 23.05.1997 holds that Ready Mix Concrete and concrete mix are two separate distinguishable commodities. It is stated in the aforesaid instructions of the Board, that RMC, even if it is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Tribunal in the case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise, reported as 2006 (198) ELT 503 (Tri) (LB). The judgement of the Hon'ble Punjab and Haryana High Court is reported as (2007) 217 ELT 345 (P&H). 8 06.10.2015 The Hon'ble Supreme Court of India, delivered a common judgement disposing the appeal filed by the assessee against the judgement of this Hon'ble Tribunal dated 24.10.2005 and an appeal filed by the Revenue against the judgement of the larger bench of this Hon'ble Tribunal, in the case of Chief Engineer, Ranjit Sagar Dam vs. Commissioner of Central Excise, reported as 2006 (198) ELT 503 (Tri) (LB). The Judgement of the Hon'ble Supreme Court of India, is reported as Larsen & Toubro Limited vs CCE Hyderabad - 2015 (324 ELT) Page 646. By its common judgement, the Hon'ble Supreme Court dismisses the assessee's appeal and allows the Revenue's appeal while holding that RMC manufactured at site is not concrete mix which is entitled for exemption under Notification No. 4/1997CE dated 01.03.1997. 9 19.11.2015 The Hon'ble Supreme Court of India, in an appeal filed by the Revenue, sets aside an order passed by this Hon'ble Tribunal d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 18.02.2020 E-40585 of 2020 06 of 2018 dated 06.09.2018 Aug. 2013 to Oct. 2015 Aug. 2013 to Oct. 2015 02 of 2019 dated 27.02.2019 86 of 2020 dated 21.08.2020 10. The Ld. Counsel argued that apart from alleging that appellant has suppressed facts there is no positive act brought out by the department to prove that the appellant has suppressed facts with intention to evade payment of central excise duty. The appellant had always cooperated with the department and furnished details whenever requested for. On such circumstances, the demand invoking the extended period cannot sustain. Ld. Counsel prayed that the appeals may be allowed on the ground of limitation. 11. Ld. A.R Ms. Anandalakshmi Ganeshram appeared and argued for the department. The decision rendered by the Hon'ble Apex Court in the case of L&T Ltd. ECC Construction Group Vs CCE Hyderabad (Supra) was relied by Ld.A.R to argue that the issue stands covered in favour of Revenue. It is submitted by Ld. A.R that it was very clear from the clarification issued by the Board that RMC was a distinct marketable product from concrete mix and therefore the exemption Notification No.4/97 is not eligible. The decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation Jt. Venture Vs CCE, Chandigarh - 2007 (216) ELT 177 (SC) the Hon'ble Apex Court allowed the plea of the assessee that the SCN is time barred as there were no grounds to invoke extended period and also because there were doubts as to whether RMC is a dutiable product. The relevant para reads as under : "7. Mr. Joseph Vellapally, learned senior counsel for the appellant submitted that there were various circulars operating at different points of time. There was no clarity or unanimity in the views expressed by the authorities themselves. In fact, correctness of the judgment by CEGAT in Continental Foundation Joint Venture's case (supra) was doubted and the matter was referred to larger bench. In Chief Engineer Ranjit Sagar Dam v. Commissioner of C. Ex., Jalandhar (2006 (198) E.L.T. 503 (Tri.-LB) larger bench of the Tribunal has held that the view expressed in Continental Foundation Joint Venture's case (supra) was not the correct view. 8. In response, learned counsel for the respondents submitted that the circulars dated 1-2-1996, 23-6-1997 and 6-1-1998 have no relevance and the judgment in Chief Engineer Ranjit's case (supra) does not reflect the correct position. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. That being so, the adjudicating authorities were not justified in raising the demand and CEGAT was not justified in dismissing the appeals. 14. On the ground of adjudication beyond the normal period of limitation and non-availability of the extended period of limitation, the appeals are allowed. No costs." 16. In the case of Gaursons Promoters Pvt. Ltd. Vs CCE Noida - 2019 (2) TMI 1026 CESTAT ALLAHABAD, the Tribunal set aside the demand on the ground of limitation as the issue was interpretational in nature. The relevant para of the Tribunal's decision is noticed as under : "3. We note that though the issue stands decided against the assessee on merits by the Hon'ble Supreme Court decision in the case of M/s Larsen & Toubro Ltd. referred (Supra) but we note that Para 23 of the said judgement of Hon'ble Supreme Court has itself observed that there was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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