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TMI Blog2024 (12) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 time barred. As the issue was finally settled by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecided 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 our considerations are as follows: (i) Whether the assessee is eligible for exemption Notification No.12/2012-CE dated 17.03.2012 in respect of Ready Mix Concrete for the period April, 2014 to September, 2015. (ii) Whether the adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 normally sets or hardens within two to 12 hours after mixing and continue to gain strength within months or even years. (ii) Ready Mix Concrete refers to concrete that is delivered to the customer in a freshly mixed and non-hardened state. Due to its durability, low cost and its ability to be customized for diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether 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 the assesse on time bar, in as much as their submission is that the extended period could not have been invoked as there is no suppression of fact on the part of the assessee. We find that the issue of limitation is mainly based on the facts of each case therefore, the facts of present case need to be examined. We find that before the judgment of Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 claimed the exemption under Notification No. 12/12-CE dated 17.03.2012 (Sl.No.144). As per this information, there is no confusion that the assessee was manufacturing Ready Mix Concrete and they are availing the exemption Notification. With this information there was absolutely no difficulty for the departmental Officers to verify the facts related to manufacture and use of Ready Mix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) CONTINENTAL FOUNDATION JT. VENTURE Vs. CCE- 2007 (216) ELT 177 (SC) 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. We are not really concerned with the other issues as according to us on the challenge to the extended period of lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. This Court has held that mere failure or negligence on the part of the manufacturer in not taking out a licence and in not paying duty does not attract the extended period of limitation. This Court has held that there must be evidence to show that the manufacturer knew that the goods were liable to duty and that he was required to take out a licence. This Court has held that for invoking the extended period of limitation duty should not have been paid, short levie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also time barred but for academic purpose, we are inclined to deal with the merit of this Department's appeal. The relevant notification no.12/2016-CE (Entry No.144) is reproduced below:- (vi) for serial number 144 and the entries relating thereto, the following shall be substituted, namely: (1) (2) (3) (4) (5) "144 38 Concrete Mix or Ready Mix Concrete (RMC), manufactured at the side of construction for use in construction work at such site. Explanation.- For the purpose of this entry, the expres ..... X X X X Extracts X X X X X X X X Extracts X X X X
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