Custom, Excise & Service Tax Tribunal
Rajkot vs Kunal Structure (India) Pvt Ltd on 22 November, 2024
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench at Ahmedabad
REGIONAL BENCH- COURT NO. 3
Excise Appeal No. 12216 of 2018- DB
(Arising out of OIA No. RAJ-EXCUS-000-APP-080-2018-19 dated 14.05.2018 passed by
ADG (Tax payer Services) Ahmedabad Zonal Unit, [Nominated as Commissioner
(Appeals) for the case])
C.C.E. & S.T. - Rajkot ........Appellant
Central Excise Bhavan, Race Course Ring Road,
Income Tax Office, Rajkot-Gujarat-360001
VERSUS
Kunal Structure (India) Pvt. Ltd. ......Respondent
Shop No. 7, Near Bhaktidham Temple, Opposite Aththi Apartment, Panchvati Main Road Rajkot-Gujarat-360001 WITH Excise Appeal No. 12438 of 2018- DB (Arising out of OIA No. RAJ-EXCUS-000-APP-080-2018-19 dated 14.05.2018 passed by ADG (Tax payer Services) Ahmedabad Zonal Unit, [Nominated as Commissioner (Appeals) for the case]) Kunal Structure (India) Pvt. Ltd. ........Appellant Shop No. 7, Near Bhaktidham Temple, Opposite Aththi Apartment, Panchvati Main Road Rajkot-Gujarat-360001 VERSUS C.C.E. & S.T. - Rajkot ......Respondent Central Excise Bhavan, Race Course Ring Road, Income Tax Office, Rajkot-Gujarat-360001 APPEARANCE:
Shri Ishan Bhatt, Advocate for the Appellant Shri R.R. Kurup, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. RAJU FINAL ORDER NO. 12774-12775 /2024 DATE OF HEARING: 20.11.2024 DATE OF DECISION: 22.11.2024 RAMESH NAIR The following issues are involved in the present case:
(i) Whether benefit of exemption from excise duty is available on RMC manufactured at site under Sr. No. 144 of Notification No. 12/2012-CE dated 17.03.2012, for the period prior to amendment dated 01.03.2016. i.e. when the exemption was
2|Page E/12216 & 12438/2018 granted to "Concrete Mix manufactured at the site of construction"?
(ii) Whether extended period of limitation is invokable in the facts of the present case where the issue was contentious in nature during the relevant period and demand is raised by relying upon Hon'ble Supreme Court judgment in Larsen & Toubro Ltd.
v. CCE, Hyderabad - 2015 (324) ELT 646 (SC)?
1.1 Both these appeals 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 Hon'ble Supreme Court in the case of L&T Limited before that there was a serious confusion about the exemption on concrete mix. He submits that as per the finding of the Commissioner (Appeals), the demand was rightly set aside on the ground of time bar. He take support of the following judgments:
CCE v Reliance Industries ltd. 2022 (3) TMI 400-CESTAT CCE v Arora Construction Co. P. Ltd. 2024 (2) TMI 72-CESTAT Shapoorji Pallonji & Co 2023 (6) TMI 695-CESTAT Nagarjuna Construction 2019 (3) TMI 775-CESTAT 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)
3|Page E/12216 & 12438/2018 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 in the case of L&T Limited (supra). In this position we uphold the confirmation of demand and penalties confirmed by the learned Commissioner (Appeals). Consequently, the assessee's appeal No. E/12438/2018 is dismissed. As regard, the Revenue's appeal we find that on the whole issue there was serious interpretation about the eligibility of exemption Notification that whether the same is limited to ready mix concrete or concrete mix also. This issue was carried in litigation in various judgments and there were conflicting issues on this issue. Later on the Hon'ble Apex Court in the case of L&T Limited (supra) finally decided 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.
4|Page E/12216 & 12438/2018
(ii) Whether the adjudicating authority has rightly invoked the larger period for confirmation of demand in terms of Section 11A(4) of the Central Excise Act, 1944.
(iii) Whether the assessee is entitle for exemption Notification No.67/95-CE dated 16.03.1995 in respect of Ready Mix Concrete (RMC) manufactured and used captively at their site.
(iv) Whether the assessee is eligible for concessional rate of duty at the rate of 2% in terms of Notification No.1/2011-CE dated 01.03.2011.
(v) Whether the assessee is entitled for exemption under Notification No.12/2016-CE dated 01.03.2016 for the period April, 2016 to June, 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 the position in which it is to set and harden. The prepared chassis which was mounted was to ensure that when the concrete mix is taken to the actual place of construction, it keeps rotating. It is also significant to mention that for producing the concrete mix, material used was cement, aggregates, chemically analysed water and admixtures, namely, retarders and plasticizers. As the L&T was constructing cement plant of a very high quality, it needed concrete also of a superior quality and to produce that aforesaid sophisticated and modernised process was adopted. The adjudicating authority in its 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 different applications, Ready Mix Concrete is one of the world's most versatile and popular building materials.
(iii) Admixtures are generally products used in relatively small quantities to improve the properties of fresh and hardened concrete. They are used to modify the rate of setting and strength, especially during solid and cold weather. The most common, is an airentraining agent that develops millions of tiny holes in the concrete, which imparts the durability to concrete in freeing and thawing exposure. Water reducing Admixtures enable concrete to be placed at the required consistency while minimizing 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."
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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 conventional/manual concreting works. Today leading cement companies have entered the field by setting- up RMC plants in which L&T ECC is one. RMC is slowly replacing site or hand mixed concrete because of the distinct advantages due to technology, speed and convenience. Furthermore, absence of the need to deal with multiple agencies for procuring and storing cement, sand, blue metal and water as well as the absence of the need to handle unorganized labour force are factors influencing customers to go in for RMC in preference to CM."
21. In this backdrop, the only question is as to whether 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 Supreme Court in the case of LARSEN & TOUBRO (supra) there are judgments in favour of the assessee in the case of CHIEF ENGG.RANJIT SAGAR DAM (supra) , this Larger Bench judgment was upheld by the Hon‟ble Punjab & Haryana High Court vide their judgment reported in 2007 (217) ELT 345. There was a Hon‟ble Supreme Court judgment also on this issue in the case of SIMPLEX INFRASTRUCTURES LTD.(supra) wherein ,it was held that Ready Mix Concrete was eligible for exemption only to be used at site. We find that in view of the above legal position, the bonafide belief of the assessee regarding eligibility of the exemption 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 statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law."
6|Page E/12216 & 12438/2018 From the aforesaid judgment, when such circulars dated 23.05.1997, 06.01.1998 and 20.11.2001 has been eclipsed from their operation, in view of the above settled position in law, it cannot be said that the assessee had any malafide intention with intent to evade payment of duty. Moreover, 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:-
7|Page E/12216 & 12438/2018 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 Concrete and the eligibility of the exemption notification on such product. The same description i.e. Concrete Mix/Ready Mix Concrete was also mentioned in the sales invoice and also claimed exemption Notification No.12/2012-CE in the said invoice. The sample invoice is scanned below:-
8|Page E/12216 & 12438/2018 From the above invoice also, it can be seen that the assessee have declared the description as Concrete Mix/Ready Mix Concrete in their sales invoice and also claimed exemption Notification No.12/2012-CE dated 17.03.2012 (Sr.No. 144). The assessee declared the description as Concrete Mix/Ready Mix Concrete instead of Ready Mix Concrete. It is 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 said that the assessee have declared both the product i.e. Concrete Mix/Ready Mix Concrete but in the exemption Notification column they have clearly claimed the notification No.12/2012-CE dated 17.03.2012 (Sl.No.144). With this information, if at all the department is of the view that the assessee is not entitled for exemption in respect of Ready Mix Concrete (RMC) department could have called the specific quantity of Ready Mix Concrete and could have issued a show cause notice well within the normal period. The department has failed to do so therefore, for this reason on the part of
9|Page E/12216 & 12438/2018 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 limitation ground alone the appellants are bound to succeed.
Section 11A of the Act postulates suppression and, therefore, involves in essence mens rea.
10.The expression "suppression" has been used in the proviso to Section 11A of the Act accompanied by very strong words as „fraud‟ or "collusion" and, therefore, has to be construed strictly. Mere omission to give correct 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 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 application of Section 11A of the Act.
12.As far as fraud and collusion are concerned, it is evident that the intent to evade duty is built into these very words. So far as mis-statement or suppression of facts are concerned, they are clearly qualified by the word „wilful‟, preceding the words "misstatement or suppression of facts" which means with intent to evade duty. The next set of words „contravention of any of the provisions 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.
(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 10 | P a g e E/12216 & 12438/2018 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 levied or short paid or erroneously refunded because of either fraud, collusion, wilful mis-statement, suppression of fact or contravention of any provision or rules. This Court has held that these ingredients postulate a positive act and, therefore, mere failure to pay duty and/or take out a licence which is not due to any fraud, collusion or wilful mis-statement or suppression of fact or contravention of any provision is not sufficient to attract the extended period of limitation.
7.Mr. Sridharan, Advocate, for the Appellant has apart from this authority also relied upon number of other authorities wherein the Tribunal has taken an identical view. In our view, 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 suppression of fact. We, therefore, set aside the demand under the show cause notice dated 3rd May, 1993.
The ratio of the above judgments is clearly applicable in the present case being the facts are similar. The Authorized Representative of the Revenue heavily relied upon various judgments on the limitation. We are of the view that as regard the issue of limitation, the case is based on facts of each case. As per the facts of the present case, as discussed above it is clear that there is absolutely no suppression 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), Nil -"
manufactured at the side of construction for use in construction work at such site. Explanation.- For the purpose of this entry, the expression „site‟ means any premises made available for the manufacture of goods by way of a specific mention in the contract or agreement for such construction work, provided that the goods manufactured at such premises are solely used in the said construction work only.
11 | P a g e E/12216 & 12438/2018 From the above notification not only the Concrete Mix but also the Ready Mix concrete (RMC) manufactured at the site of construction for use in construction work at such site is exempted. The revenue in their appeal contends that the assessee are not only consuming the Ready Mix Concrete (RMC) in their factory at site but part of the Ready Mix Concrete (RMC) are sold outside the factory. It was contended by the revenue 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 absence of such condition, the department cannot impose artificially such condition to deny the exemption to the assessee. We are, therefore, of the clear view that the adjudicating authority had rightly extended the benefit of exemption notification in respect of Ready Mix Concrete (RMC) used by the assessee in their manufacturing premises for construction work hence, the demand for the period April, 2016 to June, 2017 was rightly dropped by the adjudicating authority on the ground of its merit. Since, we have decided the matter in both the appeals on the ground of limitation and in the Department‟s appeal also on merit, we are not inclined to deal with other issues such as claim of exemption notification No.67/95-CE and Notification No.2/2011- CE dated 01.03.2011 (Sl.No.46).
05. As per our above discussions and findings, the impugned order stands modified. As a result assessee‟s appeal No E/10173/2020 is allowed with consequential relief and Revenue‟s appeal No E/10155/2020 is dismissed. CO also stands disposed of."
It can be seen that identical facts are involved in the above judgment as well as in the present case, therefore, the ratio of the above judgment is directly applicable on the issue of demand being time bar. Accordingly, we are of view that 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.
(Order pronounced in the open court on 22.11.2024 )
(RAMESH NAIR)
MEMBER (JUDICIAL)
(RAJU)
MEMBER (TECHNICAL)
Neha