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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 ..... uently 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, there are no infirmity in setting aside the demand on the ground of time bar by Commissioner (Appeals) in the impugned order. Extended period of limitation - HELD THAT:- On the identical issue Tribunal in the case of Reliance Industries Limited [ 2022 (3) TMI 400 - CESTAT AHMEDABAD ] also held the demand as time bar. Thus, the ratio of the above judgment is directly applicable on the issue of demand being time bar. Accordingly, the learned Commissioner (Appeals) has rightly set aside the demand of extended period. Accordingly the impugned order to the extent it set aside the demand for the extended period is upheld. Revenue s appeal is dismissed. - MR. RAMESH NAIR, MEMBER (JUDICIAL) AND MR. RAJU, MEMBER (TECHNICAL) Shri Ishan Bhatt, Advocate for the Appellant Shri R.R. Kurup, Superintendent (AR) for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gaursons Promoters Pvt. Ltd. 2019 (2) TMI 1026-CESTAT CCE vs Consolidated Construction Consortium Ltd. 2017 (347) ELT 295 (Tri. Del.) Simplex Concrete Piles India Ltd. 2004 (172) ELT 369 (T) Prestress (I) Pvt Ltd. 2009 (245) ELT 269 (T) Jaypee Bela Cement 2001 (128) ELT 225 (T) CCE v Afcon Pauling Joint Venture 2005 (180) ELT 377 (T) Commr. Vs Afcon Pauling Joint Venture 2005 (187) ELT A-68 (SC) M Ramachandra Rao 2005 (1876 ELT 353 (T) CP Meier 2012 (280) ELT 3 (Del) CCE vs Rajendra Narayan 2012 (281) ELT 38 (Del.) Essar Steel India Ltd. 2016 (335) ELT 600 (T) CIT vs Vatika Township Pvt. Ltd. 2014 (9) TMI 576 (SC) WPIL Ltd. 2005 (181) ELT 359 (SC) 3. Shri R.R. Kurup, Learned Superintendent (Authorised Representative) appearing on behalf of the revenue reiterates the findings to the extent impugned order confirms the demand for the normal period and reiterates the grounds of appeal filed by the Revenue. 4. We have carefully considered the submission made by both the sides and perused the records. We find that as regard the asseess s appeal the learned counsel fairly concedes that he is not pressing this appeal as the issue is against them as per the Hon ble Supreme Court judgment i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017 in respect of Ready Mix Concrete (RMC) manufactured and used at their site. 4.1 As regard the exemption Notification No.12/2012-CE Sr.No.144 dated 17.03.2012 for the period April, 2014 to September, 2015. We find that there were contrary judgments on the issue however, finally the hon'ble Supreme Court in the case of LARSEN TOUBRO LTD. Vs. CCE2015 (324) ELT 646 (SC) held that the exemption under Notification No.4/97-CE which is identically worded to Sr.No.144 of Notification No.12/2012-CE dated 17.03.2012 is inapplicable to Ready Mix Concrete. The relevant judgment is reproduced below: 19. We are also inclined to agree with the stand taken by the Revenue that it is the process of mixing the concrete that differentiates between CM and RMC. In the instant case, as it is found, the assessee installed two batching plants and one stone crusher at site in their cement plant to produce RMC. The batching plants were of fully automatic version. Concrete mix obtained from these batching plants was delivered into a transit mixer mounted on a self propelled chassis for delivery at the site of construction is in a plastic condition requiring no further treatment before being placed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inimizing water used in the mixture, thereby increasing the strength and improving durability. A variety of fibers are incorporated in the concrete to control or improve aberration and impact resistance. 20. After referring to some text as well, the adjudicating authority brought out the differences between Ready Mix Concrete and CM which is conventionally produced. The position which was summed up showing that the two products are different reads as under: From the literature quoted above it is clear that Ready Mix Concrete is an expression now well understood in the market and used to refer to a commodity bought and sold with clearly distinguishable features and characteristics as regards the plant and machinery required to be set-up for its manufacture and the manufacturing processes involved, as well as its own properties and the manner of delivery. RMC refers to a concrete specially made with precision and of a high standard and as per the particular needs of a customer and delivered to the customer at his site. Apparently due to the large demand resulting from rapid urbanization and pressure of completing projects on time, consumption of RMC has steadily grown replacing the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Notification NO.12/2012-CE cannot be doubted. In the above judgment also taken a note of Board Circular No.315/37/97-CX dated 23.05.1997 and 368/1/98-CX dated 06.01.1998 therefore, after the aforesaid judgment this Board Circulars have lost its sanctity being contrary to the judgments of Courts. Therefore, subsequent to the aforesaid judgment, even the department cannot rely upon this Circular. It is settled law by the Hon'ble Supreme Court in the case of CCE Vs. RATAN MELTING AND WIRE INDUSTRIES (supra) which mainly dealt with the issue related to effect of circular viz-a-viz. the decisions of a Court held as under; 6. Circulars and instructions issued by the Board are no doubt binding in law on the authorities under the respective statutes, but when the Supreme Court of the High Court declares the law on the question arising for consideration, it would not be appropriate for the Court to direct that the circular should be given effect to and not the view express in a decision of this Court or the High Court. So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear from the invoice that the assessee are clearing Ready Mix Concrete also under exemption Notification No.12/2012-CE (Sr.No.144) therefore, if the department had any objection, on the basis of this information itself action such as issuance of show cause notice could have been taken. From this explicit information given in the ER-1 Returns and Invoice, it cannot be said that there is any suppression of fact on the part of assessee. 4.3 It is also observed that even the entire case was made out on the basis of the same ER-1 Returns therefore, all the information required for issuance of Show Cause Notice was available with the department. In this fact, it cannot be said that the assessee have suppressed the fact with intent to evade payment of duty. The adjudicating authority has rejected the contention of the asessee on demand being time barred on the ground that the assessee have mis-declared the product as Concrete Mix/Ready Mix Concrete. We are not convinced with this finding of the learned Adjudicating Authority for the simple reason that even though the assesee have mentioned as Concrete Mix but after '/' Ready Mix Concrete is also mentioned. At the most, it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he might have done would not render it suppression. When the Revenue invokes the extended period of limitation under Section 11A 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 relied on the circular dated 23-5-1997 and dated 19-12-1997. The circular dated 6-1-1998 is the one on which appellant places reliance. Undisputedly, CEGAT in Continental Foundation Joint Venture case (supra) was held to be not correct in a subsequent larger Bench judgment. It is, therefore, clear that there was scope for entertaining doubt about the view to be taken. The Tribunal apparently has not considered these aspects correctly. Contrary to the factual position, the CEGAT has held that no plea was taken about there being no intention to evade payment of duty as the same was to be reimbursed by the buyer. In fact such a plea was clearly taken. The factual scenario clearly goes to show that there was scope for entertaining doubt, and taking a particular stand which rules out a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, the law having been settled by this Court, it is not necessary to refer to the decisions of the Tribunal. As the decisions have been cited, we merely set out the citations viz.: (a) 1997 (89) E.L.T. 123 (Tri.) - Hindustan Construction Co. v. CCE, Chandigarh. (b) 1994 (73) E.L.T. 91 (Tri.) - Jaypee Rewa Cement v. CCE, Raipur. (c) 1997 (23) RLT 260 (CEGAT) - Bhawanthadi Minerals v. CCE, Raipur. (d) 1998 (104) E.L.T. 66 (T) = 1998 (27) R.L.T. 474 (Tri.) - New Vikram Cement v. CCE, Indore (e) 1990 (104) E.L.T. 505 - Duriappa Lime Products v. CCE, Madras 8. In this case, there was a divergent view of the various High Courts whether crushing of bigger stones or boulders into smaller pieces amounts to manufacture. In view of the divergent views, of the various High Courts, there was a bona fide doubt as to whether or not such an activity amounted to manufacture. This being the position, it cannot be said that merely because the Appellants did not take out a licence and did not pay the duty the provisions of Section 11A got attracted. There is no evidence or proof that the licence was not taken out and/or duty not paid on account of any fraud, collusion, wilful mis-statement or suppres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that to become eligible for this exemption, it is necessary that entire Ready Mix Concrete manufactured at site should be used at such site and if any part of it cleared outside, the condition as given in the above explanation is violated. 4.6 We do not agree with this contention of the revenue for the reason that the exemption is always qua the goods not qua the factory, accordingly, only those goods which are solely used at the site of construction are exempted and the goods which are not used in the construction site and cleared outside shall not be eligible for exemption as the same will be chargeable to excise duty. The assessee have correctly followed the condition of the notification and paid the excise duty on the quantity of RMC cleared outside the factory and rightly claimed the exemption in respect of quantity of Ready Mix Concrete (RMC) used at the premises of site in the construction work only. There is no such condition prescribed under the notification that entire manufactured goods i.e. Ready Mix Concrete (RMC) should be used within the premises of manufacturer for construction work and no any part of the manufactured goods should be cleared outside the factory. In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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